Afghanistan: Improvised Explosive Devices
	 — 
	Question

Lord Addington: To ask Her Majesty's Government whether British troops in Afghanistan have the same equipment for detecting improvised explosive devices as their NATO allies in the International Security Assistance Force.

Baroness Taylor of Bolton: My Lords, first, I am sure that the whole House will wish to join me in offering sincere condolences to the families and friends of Private Sean McDonald of 1st Battalion The Royal Regiment of Scotland, Corporal Johnathan Moore of 1st Battalion The Royal Regiment of Scotland, Warrant Officer Class 2 David Markland of 36 Engineer Regiment, Lance Corporal Darren Hicks of 1st Battalion Coldstream Guards, Lance Sergeant David Greenhalgh of 1st Battalion Grenadier Guards, Rifleman Mark Marshall of 6th Battalion The Rifles, Kingsman Sean Dawson of 2nd Battalion The Duke of Lancaster's Regiment, Sapper Guy Mellors of 36 Engineer Regiment, Lieutenant Douglas Dalzell of 1st Battalion Coldstream Guards and Lance Sergeant David Walker of 1st Battalion Scots Guards, who were killed on operations recently in Afghanistan.
	I turn now to the Question. For operational security reasons, I cannot comment in detail on the equipment used by UK Armed Forces and our allies to detect improvised explosive devices in Afghanistan. A range of technologically advanced equipment is in service, including metal detectors and explosive ordnance disposal robots, to ensure that our troops can operate.

Lord Addington: My Lords, I associate myself and Members on these Benches with the condolences just expressed by the Minister. Does she agree that it is imperative, when we are operating closely and in similar circumstances with our allies, that any information derived by our allies when testing equipment should immediately be made available to us, and that that should be reciprocated when we test equipment of our own?

Baroness Taylor of Bolton: My Lords, a very comprehensive memorandum of understanding is in place between ourselves and the United States and, indeed, with other allies on counter-IED measures. It includes everything from intelligence to the equipment that can be used, although I would point out that equipment is only a small part of our defences against these particularly obnoxious devices. We do of course include our allies in terms of sharing information and we use the information that they give us, but often we are operating in somewhat different circumstances, so we cannot always bolt on what others may use. However, we take into account the experience and daily evidence that we can get from our allies.

The Earl of Onslow: My Lords, bomb disposal officers and NCOs are highly trained and extremely valuable. Is the noble Baroness satisfied that the casualty rates among bomb disposal officers and NCOs are not too high, and are we having difficulty in recruiting and training enough members of those units?

Baroness Taylor of Bolton: My Lords, it is true that unfortunately we have had several casualties. These soldiers are highly trained, very brave and take a great number of risks on behalf of their colleagues. Those who undertake this kind of work are volunteers, and it has been possible to find volunteers to undergo the training at present. We are continually in the process of trying to expand the skills that we have in this area. However, we should be under no illusions about the dangers that these people face. We should all be very grateful for the work that they undertake.

Lord Craig of Radley: My Lords, can the Minister tell the House how many urgent operational requirements for the detection of planted IEDs have been placed by the MoD since our deployment in Afghanistan was increased last autumn? Has the Treasury agreed that these UORs will be financed from the Consolidated Fund and not met by defence budget funds?

Baroness Taylor of Bolton: My Lords, the urgent operational requirement estimate has now been uplifted by £101 million based on the forecast spend on UORs in the current operational climate. That brings the total estimated expenditure on UORs for the year 2009-10 to £736 million, and that does not include the plans to spend over £700 million on protected mobility vehicles. The Treasury has recognised this particular area, and I think that the Prime Minister's Statement last year made it clear that for everyone in Government, countering the IED threat, which is so important in this campaign, is a very high priority indeed.

Lord Luke: My Lords, first, we associate ourselves with the condolences read out by the Minister concerning the casualties in Afghanistan.
	Given the very grave public concern surrounding the improvised explosive device threat, can the Minister be a little more specific about the work being undertaken in the UK, and with our NATO allies, to deal with the IED threat, and the timescales to which they are working?

Baroness Taylor of Bolton: My Lords, I cannot be very specific about the work that is going on, because by its nature it has to be kept somewhat confidential so that we do not put our troops under unnecessary threat. However, I can assure the noble Lord and indeed the House that everything possible is being done. One of the most significant initiatives was the tiger team set up by the MoD last year to bring together the best brains from industry and the scientific community, inviting new ideas and then evaluating them. That is a very exciting project. It is ongoing because the threat is developing all the time. Although we are sharing that information with the United States, which is very interested in it, it is important to realise that this is not a one-off event of trying to find something that will counter all IEDs in future. We have to adapt our technology because the nature of the problem that we face is evolving, and we have to try to anticipate what the next steps should be. It is an exceptionally high priority for everybody in the military and the MoD.

Lord Wallace of Saltaire: My Lords, I understand the Americans have found drones very useful as a means of watching when people are likely to be placing IEDs in Afghanistan. Are we doing the same thing, and do we have enough drones for the purpose?

Baroness Taylor of Bolton: My Lords, drones are extremely important in that area as well as in other areas. By the end of last year we had increased very significantly our capability in terms of the hours that we have available for drones: by 33 per cent for Hermes, 50 per cent for Desert Hawk, and 80 per cent for our Reaper capability. We acknowledge the very real importance they can play, but I emphasise that the equipment we have is only one part of the battle. It is also about our tactics and procedures, and the training we give our troops. Overall, taking all those things into account, we have made real headway, and we are working very closely with allies to share our experience and indeed to learn from them.

Earl Attlee: My Lords, will the Minister pass on the thanks of this House to the scientists and engineers at various MoD establishments who do such brilliant and diligent work in developing the countermeasures?

Baroness Taylor of Bolton: My Lords, the noble Earl raises an important point. Very often the people who do this essential and vital work are behind the scenes and we should take every opportunity to commend them on the efforts they make on our behalf.

Lord Ramsbotham: My Lords, returning to the point raised by my noble and gallant friend Lord Craig, does the Minister agree that the question is not so much about how much urgent operational requirement money has been provided by the Treasury, but about how much is then going to be clawed back from the defence budget?

Baroness Taylor of Bolton: My Lords, an agreement was reached on UORs some time ago and is in the public domain. Over a certain limit the MoD will make a contribution, not least because the equipment developed under urgent operational requirements is now becoming mainstream equipment for everyone in our Armed Forces.

Employment: Older People
	 — 
	Question

Baroness Greengross: To ask Her Majesty's Government whether they will extend the job guarantees available to young unemployed people to those aged over 50.

Lord McKenzie of Luton: My Lords, while the young person's guarantee is focused specifically on younger jobseekers, who have suffered the largest rise in ILO unemployment rates during the recession, unemployed people aged 50 and over continue to receive access to a wide range of support through Jobcentre Plus, including the Flexible New Deal. Meanwhile, 50,000 of the 170,000 jobs that we are creating through the Future Jobs Fund are available for people of all ages in areas of high unemployment.

Baroness Greengross: I thank the Minister for that reply. The Government were right to concentrate initially on the young but many older workers find that premature exit from the job market really means early retirement because employers will not take them on for what they see as a short period. A recent CIPD report showed that three-quarters of these people need to work past the state pension age because this affects their pension. Given that the number of over-50s who are unemployed increased by 136 per cent in the year to last October, will not the Minister review-

Noble Lords: Order!

Baroness Greengross: I am sorry. I am asking a question, my Lords.

Baroness Royall of Blaisdon: My Lords, I recognise that the noble Baroness is asking a question, but it should be sharp and to the point.

Baroness Greengross: Will the Government look again at the statistics I have quoted and review their position as a matter of urgency?

Lord McKenzie of Luton: My Lords, this question is highly relevant because the Leader of the Opposition has reached the age of 50 today. The House will understand that I would not wish to offer him any redeployment opportunities from the Dispatch Box. I recognise that this is a serious question. It is right that we invest in young people, who are the future of our country, and ensure that they are not allowed to drift into long-term unemployment at the start of their working lives. We have made significant investment in new measures for jobseekers of all ages. In the recent White Paper, Building Britain's Recovery, we announced more help for older workers. This includes new, specialist, back-to-work support for the over-50s; a widening of access for over-50s to work in job trials, where older jobseekers would benefit from earlier access; and ensuring that over-50s with significant barriers to employment receive early access to the six-month offer. We are reviewing the default retirement age.

Lord Roberts of Conwy: Of the 923,000 young people under the age of 25 who are unemployed, how many are actually participating in the Government's guarantee scheme?

Lord McKenzie of Luton: My Lords, ILO unemployment figures fell in the last quarter for the number of people under the age of 25 who are unemployed and 266,000 people in that category are in full-time education. As for the numbers in the Future Jobs Fund, we have approved 104,000 to date.

Lord Oakeshott of Seagrove Bay: My Lords, I am sure the whole House will join me in congratulating the noble Lord, Lord Strathclyde, on his birthday today, and I am sure I speak for many of us in wishing him many more years as Leader of the Opposition. The Minister talked about unemployment rising more slowly among the over-50s than among the young, but is he aware of the sharp difference in the figures for men and women? Among men, long-term unemployment has gone up by more than 50 per cent in the last year for the over-50s, compared with only 23 per cent for women. Why does he think that is and what steps is he taking to avoid a whole generation of men over the age of 50 being thrown on the scrap heap, as they were in the Thatcher recession?

Lord McKenzie of Luton: My Lords, the noble Lord is right that unemployment has increased more for men than for women, but we are seeking to avoid the many mistakes of the last recessions through the support for all over-50s, which I outlined earlier: new specialist support to get them back to work; help with barriers to employment, such as skills training; and additional time and training for Jobcentre Plus advisers to work with individuals in that category.

Baroness Howe of Idlicote: My Lords, given the importance of flexible working to companies during this recession, how does the Minister plan to promote a change in culture towards flexible working, not least to ensure an intergenerational workforce where the skills and knowledge of the over-50s can be passed down to the younger generation?

Lord McKenzie of Luton: The noble Baroness raises a very important point. We know that a significant number of older people would wish to work past the age of 50, or even past state pension age, if they could work part time, which is why the December White Paper announced plans to work with employers to encourage and help them to understand the benefits of flexible and part-time working.

Lord Campbell of Alloway: My Lords-

Noble Lords: Front Bench.

Lord Freud: My Lords, in the light of reports that local authorities are planning 20,000 redundancies, how many jobs have been displaced by the young person's guarantee and how many are estimated to be displaced in the future?

Lord McKenzie of Luton: My Lords, this is not about displacing jobs. We all recognise that the public expenditure backdrop is a challenging one, which is why local authorities are focusing on programmes such as Total Place and innovative procurement as ways of dealing with services in the future to make sure that people are supported and that resources are shifted from the back office to the front line.

Women: Non-executive Directors
	 — 
	Question

Baroness Prosser: To ask Her Majesty's Government what steps they are taking to increase the number of women non-executive directors on public and private boards.

Baroness Royall of Blaisdon: My Lords, whether in the private or the public sector, boards that have a diverse mix of people and talent make better decisions. We have set challenging targets to improve the diversity of public appointments and have a clear action plan in place, including raising awareness of public appointments and new mentoring programmes for potential candidates from underrepresented groups. As the women's employment strategy published earlier this month set out, we are also working with business leaders to find a business-led solution to improving diversity on private sector boards.

Baroness Prosser: I thank the noble Baroness for that reply. Given that there is an overwhelming understanding of the value of diverse debate and decision-making, would she agree that, while the figures are dispiriting in both the public and private sectors, advances could be made on private boards by establishing an exemplar group of companies, where the possibility of target numbers could be discussed and best practice guidelines produced?

Baroness Royall of Blaisdon: My Lords, that is certainly an interesting idea, which I shall discuss with my noble friend Lord Davies of Abersoch, who is having discussions with company chairs and nomination committee members about the need for boards to have the right mix of skills, knowledge and experience. He is talking also to headhunters about these matters. He is determined to make progress on this issue, because, with his vast experience, he can see what society is missing out on because there are not enough women on these boards.

Baroness Morris of Bolton: My Lords, does not the Leader of the House agree that it would be easier for the Government to persuade private companies if they looked a little closer to home? Is she content that, across all departments, women fill only 32.9 per cent of senior Civil Service positions?

Baroness Royall of Blaisdon: My Lords, I am certainly not content with that figure. The Government are looking at this and working with departments to ensure that, as with all public boards in the Civil Service, we ensure that there are women coming up through the ranks who are able and willing to take senior positions.

Baroness Northover: My Lords, what does the noble Baroness make of the fact that two of our publicly owned banks, RBS and Northern Rock, have only one woman each on their boards? In the case of RBS, that appointment was made only this last January. Does she think that alpha males have contributed to the success of these companies?

Baroness Royall of Blaisdon: My Lords, I was as shocked as the noble Baroness when I read those statistics this morning. I then also read a Financial Times editorial, which said:
	"If there is ever a time for women to make a decisive breakthrough in corporate boardrooms, it is surely now. Many boards, especially in financial services, are in flux after the testosterone-fuelled excesses that led to financial disaster".
	I could not have put it better myself.

Baroness Hollis of Heigham: My Lords, following on from that, will my noble friend comment on the fact that the SSRB, a public board, has not a single woman member? That is a matter of some concern to Members of this House, where we discuss the board's report.

Baroness Royall of Blaisdon: My Lords, it is a matter of concern to me, too. I spoke about it to the chairman of the SSRB, who pointed out-quite rightly-that when the board sought new members recently it did not have the number of women coming through to be interviewed. Quite frankly, that is not good enough. There are women out there who could come forward, but perhaps the advertisements and the headhunters who were used did not identify them. That is something in which we must all engage constructively.

Baroness O'Cathain: My Lords, not only are there no women on the SSRB, but we were told categorically that there were no adequate women who could be put on it. Excuse me! Does the noble Baroness really think that we ought to employ these people again?

Baroness Royall of Blaisdon: I would not wish to comment on the noble Baroness's latter point, but I think that there are many, many women out there who would serve admirably on that board and on many others. We have to ensure that they are properly identified and know that the opportunities are there for them to grasp.

Baroness Finlay of Llandaff: Do the Government recognise that women are underrepresented in many senior positions, such as in academia across university deanships and so on, and that many women do not have a linear career path? Part of the problem for headhunters is that they look at CVs that reflect a linear career path, but these do not represent women who have stopped off, had children and developed their careers at different times. There is an endemic culture of not recognising how women peak at a different time in their careers because of their different responsibilities.

Baroness Royall of Blaisdon: My Lords, I completely agree with the noble Baroness. Job specifications are extremely important. I do not think that headhunters understand these things at the moment. That is why my noble friend Lord Davies and others are working with them to ensure better understanding in future.

Lord Dykes: My Lords, should not the Leader of the House and the Government specifically focus on women being on the boards of directors and on the remuneration committees, particularly in financial companies, as a very effective way of deterring outrageous bonuses?

Baroness Royall of Blaisdon: My Lords, I think that that is an excellent idea. Women should be at every level, on every board, including remuneration committees.

Earl Ferrers: My Lords-

Lord Berkeley: My Lords-

Lord Hunt of Kings Heath: My Lords, I think that it is the turn of my noble friend. We might just be able to get the noble Earl in as well.

Lord Berkeley: When the noble Baroness and my noble friend Lord Davies are talking to private and public company chairmen, could they find time to talk to the chairman of Network Rail? He has just appointed some new board members, but there is still only one woman among a board of 16.

Baroness Royall of Blaisdon: Yes, my Lords, I will gladly make contact with the chairman of Network Rail.

Earl Ferrers: My Lords, does the Leader of the House agree that, whatever their merit, both the questions and the answers are very discriminatory?

Baroness Royall of Blaisdon: My Lords, I do not think that I am being discriminatory in any way.

Lord Acton: My Lords, has my noble friend read the speech that the noble Earl, Lord Ferrers, made in December 1957 on the subject of women? Is she aware that the question that he has just asked is a model of enlightenment compared to that?

Baroness Royall of Blaisdon: My Lords, I have indeed read the speech by the noble Earl. I did not know whether to cry or to laugh. However, I know that the noble Earl has made a huge change in his views since then and I am glad that he is now the enlightened person that he is.

Earl Ferrers: My Lords, is the noble Baroness aware that at that time, which was some years ago, I was giving the views of the youth and the young generation, which is what everyone wants to listen to? Of course, as time has progressed, you change your views, sometimes a little, sometimes a lot, but you are still the same person.

Baroness Royall of Blaisdon: Indeed, my Lords.

Extremism
	 — 
	Question

Baroness Knight of Collingtree: To ask Her Majesty's Government how they intend to combat the threat of extremism among Muslims in Britain.

Lord West of Spithead: The Government are committed to tackling all forms of extremism. CONTEST presents our strategy to reduce the risk from international terrorism. The Prevent strand aims to stop people from becoming or supporting violent extremists.
	The international terrorist threat is mainly from al-Qaeda and AQ-influenced groups, which primarily seek to recruit vulnerable individuals from Muslim communities. Muslim communities, though not the sole focus, remain a priority for Prevent support.

Baroness Knight of Collingtree: My Lords, does the Minister think that the recent permission given for a hard-line Muslim priest-Yahya Ibrahim, banned in America-to come to Britain to speak in a number of British universities might just be adding to the extreme concern expressed by the State Department in America, and have led to the House of Commons Select Committee to describe our approach to the al-Qaeda programme as "lethargic"?

Lord West of Spithead: My Lords, the noble Baroness touches on a very sensitive point: who we deal with, who we talk to, and who we allow to come into the country. There are very specific rules about who we can stop coming in and, in the assessment of the Home Secretary, the particular individual talked about did not meet the cut-off level for not being allowed in. We are always dealing with some organisations which, one could argue, are on the cusp of these things. It is vital that we engage with them because sometimes they can make a genuine difference in stopping violent extremism, though they might have views that we abhor.
	This is a very difficult balance. We have done a lot over the past two and a half years. I think that we have got better at this, and that we have got a better understanding. We have made some mistakes, but we have learnt from those and we are much better at it now. As far as the Americans go, they are really impressed with our Prevent strategy. They did not have a similar strategy, and they see it as a very good example. They have some views about how they would adjust it, and we are in very close dialogue. But we are doing the right thing, and it is very important that we have done that.

Lord Wright of Richmond: Surely a major cause of Muslim extremism is the failure of our Government and other members of the quartet to stop the continuing expansion of Israeli settlements in the West Bank, and the eviction of Palestinians from East Jerusalem.

Lord West of Spithead: My Lords, over many years I have travelled to the Middle East in various guises, whether as Chief of Defence Intelligence, First Sea Lord, commander of a battle group or whatever, and now of course as a Minister. This is a significant and important issue, and there is no doubt that it poisons a lot of other issues. The British Government are clear on our views on it. The noble Lord is right that a resolution of the affairs in the Middle East would make a huge difference to extremism; it would change it fundamentally.

Lord Dholakia: My Lords, does the Minister accept that a large number of people from the Muslim community are law-abiding citizens and that it would be wrong to generalise about or stereotype that community with regard to terrorism? The Minister said that the strategy was about prevention, but has he carried out an assessment of the impact of the cutbacks in Foreign Office expenditure in Pakistan and how they are affecting the radicalisation process over there?

Lord West of Spithead: My Lords, the noble Lord is right-Prevent is not about stigmatising any communities at all. There is no doubt that the vast majority of Muslims oppose violent extremism; only a tiny minority are violent extremists. That is why we have close liaison with a number of people from all faiths and communities within the Prevent strategy.
	With regard to funding, we have spent £240 million on Prevent over the past two years, a level of spending that had not been there before, within this country at community level and above. Foreign Office spending on Prevent is at about £80 million over the past three years. That is a lot of money, and it is more than has ever been spent. There have been constraints on some of that but overall it has still increased, and it is an important part of the whole package.
	I am proud of our Prevent package. We had not really talked about these issues until about two and a half years ago; we had certainly not done very much. We were all culpable, in that in the 1990s we did not understand this pernicious radicalisation of tiny numbers of people in our midst-we just had not spotted it. That was an error. We picked it up in our CONTEST strategy and we pointed it out. We now understand it to a degree; we are still learning, but we are doing a lot of good things to try to counter it.

Lord Ahmed: My Lords-

The Lord Bishop of Leicester: My Lords-

Lord Eden of Winton: My Lords-

Noble Lords: Bishop!

Lord Hunt of Kings Heath: My Lords, I think the House would like to hear first from the right reverend Prelate.

The Lord Bishop of Leicester: My Lords, does the Minister agree that one of the unintended consequences of the Prevent strategy has been at times to reduce trusting relations between Muslims and those of other faith communities in some of our cities? Does he agree that programmes designed to build up those trusting relations, like Leicester City Council's mainstreaming moderation agenda, are a more productive way forward?

Lord West of Spithead: My Lords, the right reverend Prelate raises a valid point. I see these programmes as being complementary-they all work together. Things like our Channel programme do a huge amount in identifying and pulling out those who are vulnerable and working with local communities. The vast majority of our Muslim community understand this and are becoming linked in to the Prevent agenda. I am not pretending that we have got everything right; this is a difficult and sensitive area, and we are working hard and learning lessons all the time. These things all work together, though, and all of them are needed.

Baroness Neville-Jones: My Lords-

Lord Hunt of Kings Heath: My Lords, I am very sorry, but we have reached 30 minutes.

Business of the House
	 — 
	Motion to Refer to Grand Committee

Moved By Baroness Royall of Blaisdon
	That the report of the Merits of Statutory Instruments Committee on What happened next? A study of Post-Implementation Reviews of secondary legislation (30th report, Session 2008-09, HL Paper 180) be referred to a Grand Committee.
	Motion agreed.

Rail Vehicle Accessibility (London Underground Metropolitan Line S8 Vehicles) Exemption Order 2010

Rail Vehicle Accessibility (London Underground Metropolitan Line S8 Vehicles) Exemption Order 2010
	5th Report Joint Committee on Statutory Instruments

Motion to Approve

Moved By Lord Faulkner of Worcester
	That the draft order laid before the House on 12 January be approved. 5th report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 9 February.
	Motion agreed.

Third Parties (Rights against Insurers) Bill [HL]

Main Bill Page
	Copy of the Bill 
	Explanatory Notes

Report

Report received.

Arrangement of Business
	 — 
	Announcement

Lord Bassam of Brighton: My Lords, with the leave of the House, my noble friend Lord Brett will repeat as an Oral Statement an Urgent Question allowed in the Commons on the use of fake passports by the persons implicated in the murder of Mr Mahmoud al-Mabhou at a convenient point after 3.30 pm. At another convenient point after 5.30 pm, my noble friend Lord Bach will repeat the Statement entitled, "Prisons: Early Release".

Personal Care at Home Bill
	 — 
	Committee

Clause 1 : Free provision of personal care at home
	Amendment 1 had been withdrawn from the Marshalled List.
	Amendment 2
	 Moved by Lord Low of Dalston
	2: Clause 1, page 1, line 4, leave out "(2)" and insert "(1A)"

Lord Low of Dalston: My Lords, I shall also speak to Amendment 4. It is a pleasant change to be moving the first amendment in Committee instead of being last up at 10 pm, as I have been on several recent occasions. However, I can be as brief in moving this amendment as one is obliged to be at 10 pm. At Second Reading, the noble Baroness asked me to work with the Government to make the Bill and its guidance stronger and more effective. It is in that spirit that I move this amendment today.
	The amendment would make it a legal requirement for service providers to involve users of those services in decisions on how they will discharge their functions under the regulations. Apart from this being good practice as a matter of course, there is a particular reason for making this a legal requirement in the Bill. Two recently introduced statutory instruments-2655 and 2678-made two very welcome changes to benefit rules applying to service users who are paid for their involvement in the work of a variety of bodies in the health and social care field. One concerned the treatment of reimbursed expenses as earnings and the other the application of what are known as "notional earnings".
	However, the new rules cover only those whose involvement is required by law. Those whose involvement is merely a matter of good practice or a response to policy guidance are not covered. The new rules do not apply unless the involvement of service users is required by statute or is commissioned by a public body that is required by law to involve service users. I am moving this amendment to make absolutely sure that service users who are involved in decisions about how the new regulations are implemented will be covered and able to derive the benefit of the new benefit rules. I beg to move.

Earl Howe: My Lords, I speak very briefly to support the noble Lord, Lord Low, in all that he has said about service user involvement. He has cited various good, technical reasons why his amendment should receive sympathetic treatment from the Minister, but what troubles me about the Government's policy for rolling out free personal care to the elderly is the prescriptive feel of the policy. It has a kind of "take what you're given" feel. As such, I cannot help feeling that it cuts across the trend towards greater personalisation in social care, on which-to be fair to the Government-there has been a lot of encouraging progress in recent years.
	Before you can get free care, you have to tick a whole series of boxes, at the end of which you are either entitled to the service on offer or you are not. By contrast, the premise of the personal budget is the exact opposite: it starts from the position of saying that service users should have choice and control over what they buy to meet their care needs.
	The policy will also, I think, serve to disincentivise people from engaging in prevention programmes before serious health problems set in. If people are led to believe that they do not have to worry much about looking after themselves should their physical condition deteriorate, they may well be less motivated and less fully engaged in trying to stay healthy. Involving service users and their carers in decisions about the type of care that is appropriate and necessary is absolutely essential. I hope the Minister will find a way of ensuring that, at the very least, the guidance to local authorities on the issue makes this point clear.

Baroness Wilkins: I strongly support the amendment, which would place an explicit duty on service providers to involve service users in arrangements made under the Bill. This is very much in line with the Government's policy of devolving power to disabled people and realigning care and support systems so that they promote real choice, control and personalisation. These are goals that current legislation actively thwarts. Unless you live in an area-and such areas remain the exception-where the local authority is at an advanced stage of implementing self-directed support and individual budgets, you will find that your care package remains something handed down to you, rather than something you actively participate in, design or own. Many people continue to receive services they would not choose for themselves and much provision is arranged for the convenience of the provider, rather than being tailored to what the individual needs.
	The amendment would provide a valuable corrective to this lingering culture of paternalism. It could also provide an invaluable guarantor of the cost-effectiveness of the new free care offer. There is copious evidence that self-directed support achieves better outcomes for people with the same resources. I strongly urge the Minister to give a firm commitment today to embedding the principles of choice and control in the arrangements made under the Bill.

Baroness Gardner of Parkes: My Lords, in theory the amendment is good but I have some questions about it. I am interested in the comment of the noble Baroness, Lady Wilkins, about so many care packages being designed to suit the carer. At Second Reading I mentioned how people are being put to bed at 6 pm when they would rather stay up for the ten o'clock news. It is important to ensure that these users of services have a say and are involved. However, it is clearly impossible to accommodate everyone because not everyone can be put to bed at 10 pm. That is why it must be spread over a period. Although in theory I absolutely agree with the amendment, in practice it is not as easy to implement as we imagine. My other question is about those users of such services who are not capable of making decisions. Exactly what provision will there be for such people where they rely on someone else to make decisions?

Lord Sutherland of Houndwood: My Lords, I support the amendment for the reasons already given. One of the great dangers in providing care services is that we move inevitably towards a "one size fits all" approach to suit the institutional providers of care. This is a welcome corrective and I support the principle of the amendment.

The Lord Bishop of Norwich: My Lords, I add my support for the amendment. One of the most distressing features of increasing incapacity is a sense that you can be disempowered from making decisions about your life. If we are talking about personal care at home, care cannot be imposed on people, because it then treats the human person as an object to be done to. The value of the amendment is that it recognises that real care includes a degree of reciprocity, while recognising all the practical problems that have already been mentioned. The sort of consultations that are suggested here would make it feel like real care. I hope the Minister will feel able to accept the amendment.

Baroness Thornton: My Lords, I am replying to Amendments 2 and 4, tabled by the noble Lord, Lord Low, and the noble Earl, Lord Howe. It is appropriate that we should be discussing now, right at the beginning of the Bill, the importance of the involvement of users and carers in determining care needs. These are entirely appropriate amendments, each addressing slightly different aspects of this area. However, I think that we all agree how important it is that an individual should be involved in determining how their own care needs can best be met, by being involved in the assessment and decision-making processes.
	That is the whole ethos of the transformation agenda in Putting People First. The excellent work going on in councils such as Manchester, Trafford, Oldham, Essex and others demonstrates the value of life-changing projects which ensure that people who need care are involved in shaping it. I am not claiming that this happens everywhere, but we know that there is very good practice that needs to be spread throughout the country.
	Our aim is to put people in the driving seat to enable them to be in control of their own lives, as explained by my noble friend Lady Wilkins. It is important to say that there may be situations where a person has the onset of a degenerative or other neurological condition, as pointed out by the noble Baroness, Lady Gardner, and it is no longer possible for them to determine what is best for them. In these situations, others must be entrusted to make the right decisions. In doing so, they have to be mindful of the provisions of the Mental Capacity Act and seek to do this in a way that is not only in the person's best interest but follows as much as is possible what the person would have wished for themselves. This House has discussed that Act on many occasions.
	We will continue to encourage councils and to champion those which do good work with their user organisations. We do not believe that we need to insert new provisions into the Bill to do so, because we already have directions made under the National Health Service and Community Care Act 1990 that support user involvement in care planning. These directions already place a statutory requirement on local authorities to ensure that people receiving care services have appropriate input into determining their care.
	The noble Lord, Lord Low, rightly said that his amendments refer to the users of services being involved in those decisions. The problem is that they conflate the functions with which the regulations will be concerned, which concern the eligibility for free personal care, and the functions relating to the delivery of free personal care themselves, which is not something with which the regulation power of Section 15 is concerned. However, it is right that people receiving care are involved in the development of their care plans, which is a key element of the principle of personalisation that we have already begun to develop over the past two years. We have been working to transform adult social care.
	I therefore say to the noble Earl that it is entirely consistent with the approach of personalisation. The Bill will be setting through the regulations, when they are made, an entitlement to free personal care. People will then receive a personal budget that can be spent flexibly with their carer to meet their needs, and guidance will make that clear.
	Several noble Lords have said that they agree with the principle of this-as do the Government. We think that the regulatory framework is there. However, we believe that what the noble Lord, Lord Low, is proposing would be covered in guidance. We would be very happy to re-emphasise this in guidance and to discuss it with the noble Lord and others as the guidance is developed.
	Finally, I understand from the noble Lord's remarks that he was concerned that user involvement in this way might result in some people being pushed above the threshold of certain benefits if they receive a small payment for their involvement. I can assure him that that would not be the case. This is not a scheme that will involve payments for user involvement. I therefore ask the noble Lord, with those assurances, to withdraw the amendment.

Lord Low of Dalston: My Lords, I am grateful to the Minister for her reply and to all noble Lords who have spoken and given the amendment a warm welcome.
	The noble Baroness, Lady Gardner of Parkes, made a couple of points. I think that the Minister probably responded to the point about users who are unable to represent their own needs or have difficulty in doing so. On the point that it is not possible to meet everyone's needs simultaneously, thoroughgoing implementation of the personalisation agenda should help in that regard. However, I am largely reassured by what the Minister said, in that a statutory requirement for service users to be involved does in fact exist under the community care Act. That being the case, there is probably no need for the amendment to be put on the face of the Bill. I was glad to hear the Minister say that it is her intention to emphasise that requirement in guidance, and possibly to give further guidance as to how to discharge the obligation.
	I shall read carefully what the Minister said and see whether there is anything that we need to return to on Report. I was a bit concerned when she said at the end of her response that people would not be paid. Arrangements differ from one body to another, and sometimes payments are made for this kind of user involvement. I would want to be sure that, where there was a practice of payment, this could be maintained without, as she said, pushing people above the benefit thresholds. For the time being, I am happy to beg leave to withdraw the amendment.
	Amendment 2 withdrawn.
	Amendment 3
	 Moved by Baroness Masham of Ilton
	3: Clause 1, page 1, line 4, leave out "(5)" and insert "(5A)"

Baroness Masham of Ilton: The Bill before your Lordships has no right of appeal for those people who desperately need personal care and may have been rejected by their local authority. It is very important that people who have been denied the right to personal care and feel that they have been wrongly assessed should have the right of appeal.
	Staff working in many different fields have the right of appeal for many different reasons. Why should service users be denied this right? Why has the right of appeal been left out of this Bill? In order to establish this, it is necessary first to amend the Community Care (Delayed Discharges etc.) Act 2003. This is covered by Amendment 39, which creates the right of appeal. Amendment 3 simply amends Clause 1(1) of the Bill to make it clear that the community care Act is being amended.
	There is a growing army of elderly people, some of whom have serious and complex neurological conditions. When money is scarce, it will be very easy for local authorities to refuse much-needed help. Some local authorities have a very dogmatic approach to the people who need help. It is the wish of most people to stay in their own homes and, if possible, to die there. However, that is not for everyone. I will give your Lordships an example, having received an e-mail last week from the daughter of an elderly lady. It states:
	"These are my views and those of my mother. The Government seems set on providing care for elderly people in their own homes, stating that this is their preference. However, the sad fact is that many elderly people, like my mother, live alone and long for company. Although she has carers coming in three times a day, they stay a very short time to deal with household and personal care tasks, and she then spends many hours alone with no-one to talk to. For this reason, there should be choice so that those with families nearby or close friends can have the opportunity to stay in their home with the help they need. But for those without this resource and who express a preference, a move into a care home will mean constant companionship, planned activities during the day and the stimulation of conversation with others. Research shows that constant stimulation is beneficial to the elderly and aids good health. Leaving an elderly person to cope in their own home can lead to isolation, depression and vulnerability to poor health".
	I brought up the need for a right of appeal at Second Reading but had no response from the Government. I hope that this time there will be a positive reply. As people's needs vary so much, choice and flexibility should be the policy of all local authorities. Unfortunately, that so often is not the case. Therefore, an amendment to the appeals system should be in place. Would it not be possible for the Care Standards Tribunal, which deals with many appeals from members of staff, also to deal with appeals from service users who have been turned down by their local authorities? I hope that the Government and your Lordships will accept this amendment. I beg to move.

Earl Howe: My Lords, I have added my name to these amendments, which follow on very neatly from those in the name of the noble Lord, Lord Low. When the provisions of the Bill are brought into force, there will be many decisions that will go the wrong way from the point of view of the service user. I am afraid that we are going to see a lot of disappointed people out there. There needs to be a formal process by which service users can make representations and be sure that their concerns will be considered objectively. I therefore strongly support the noble Baroness's amendment.

Baroness Gardner of Parkes: My Lords, I also support the noble Baroness but I am concerned about a number of things. One is the point she has just made about the person who would prefer to be in a care home rather than live in their own home. As I understand it, there will be a perverse incentive there in that if, under the Bill, you are one of the people who will be eligible to receive free care, you will not receive it unless you are already in the very limited category of those who have their residential home paid for. Therefore, we are probably eliminating the element of choice for those people who would prefer to go into a home but not to have to pay for their care, whether it was in a home or wherever. I think we are almost discriminating in this way, in that the Bill proposes to help those in their own homes but not to help them if they make a choice as in the case described by the noble Baroness, Lady Masham.
	There are two different issues here. I support completely the right of appeal because I think that, under normal justice, we all expect to have the right of appeal on any and all issues. However, I am concerned about the bureaucracy that will be required to cope with the appeals, because I imagine that there will be a huge number of them. Once people get the feeling that, no matter what your income is, you can have your care at home for free, everyone will want to appeal on that. The proposal, according to the noble Baroness, Lady Masham, was to have a separate external body hearing the appeals. I think that is essential because local authorities will not possibly be able to cope. They will be hard-pushed enough coping with the assessments proposed under the Bill, never mind the appeals against them. Therefore, I support the principle of the right of appeal but I am concerned about how the process would work in reality.

Lord Lipsey: My Lords, I support the amendment moved by the noble Baroness, Lady Masham. I emphasise the point borne out by her moving quotation-the fact is that most people living at home get very small amounts of care of, typically, six hours a week, typically confined to week days. The Government may say that that will all change but they have spent all the money on making the care free, so they are not going to have any left over to provide much more care. In those circumstances, unless the Government's costings are hugely increased so that far more care is made available at home, as well as it being free-that would explode the Government's costings-the reality is that for many people staying on at home is not a bearable option. I shall refer to that later in the debate. It is therefore all the more essential that something is done to prevent the bias in the Bill-it can be put no less highly than that-against people who need a lot of care, will not get it at home and who, if they go into residential care, will unfairly have to pay for it whereas people who receive it at home will not.

Baroness Murphy: I add my two penny worth to this amendment. I rather naively thought that there was a right of appeal; perhaps I have misunderstood. For example, there is a rather arbitrary cut-off point as regards whether a person receives half the attendance allowance or the full attendance allowance depending on the level of disability. The majority of appeals against the half-day rating are found for the appellant. Those decisions are often very arbitrary and are not founded on a proper understanding of the impact of a person's disability. Therefore, it is clear to me that there must be a right of appeal. If it is not there automatically in the Bill, I add my support for the amendment, but I hope very much that the Minister will tell us that it is already in there.

Lord Tebbit: My Lords, I always hate to disagree with the noble Baroness, Lady Masham, on these kinds of issues because she understands so much about them. However, like my noble friend Lady Gardner, I am worried about the costs and the work which we are imposing on local authorities. I should make plain that if someone would like to pay the costs which my wife and I incur for her care, I would be extraordinarily grateful. However, I wonder whether anybody has a realistic idea of what those costs are. That is one of my worries about the Bill. If we then added to all these costs the perverse incentive that my noble friend Lady Gardner mentioned of allowing those who qualify for free care at home to take that free care with them into a care home, that would be quite extraordinary because it would mean that they would be better off than people who had been in the care home originally. Although Her Majesty's Government were no doubt inspired by all sorts of good and decent feelings in this matter, they have not quite thought through-nor have some of my noble friends thought through-the complications, possible perverse incentives and sheer scale of the cost involved.
	I think that my wife qualifies for about £60 a week for her care. We sometimes have a good laugh about just how much care can be provided for £60 a week. It is pretty darned little. I would be very happy to tell the Minister in private exactly what it does cost to care for someone like my wife at home.

Lord Sutherland of Houndwood: I understand and accept the validity of the points that have just been made. One of the lacunae in the Bill is the uncertainty about the relationship between care in residential contexts and care at home. For example, what happens if someone comes from a care-at-home situation and needs care in a residence, which could well happen part-way down the system? So there are lacunae in the Bill, but I would like to detach those from the question of whether there ought to be and sensibly should be an appeals system of some kind. I can think of two practical grounds for having an appeals system. One is that evidence has shown in the past that appeals will come in anyway. Indeed, two or three years ago they came in in their thousands to the health ombudsman's office. That office was not set up specifically to deal with this need, but appeals will go somewhere and, in that sense, it would be far better to have an appeals system that was understood within the context of the Bill.
	The other point is that it would be a considerable discipline, for those who agree what criteria should be applied, to have those criteria plain and understood and with as much objectivity as possible in such a difficult situation. That being the case, there would be fairly straightforward grounds, I would hope, for settling whether a particular appeal should be upheld. There are cases to be made for supporting an appeals system, despite the continuing problems of the Bill.

Baroness Barker: I want to make a point that I hope will endure for the whole of our debate: it is a plea for clarity about terms. A couple of weeks ago, I listened to a senior member of a local authority social services department make a complete hash of explaining care brokerage to a roomful of people. She managed, in the course of five minutes and two sentences, to confuse care assessment, care brokerage, negotiation of services and funding.
	It is important that, in talking about an appeal, we recognise that there are three different appeal processes in social care. One is an appeal against an assessment of needs, the second may be an appeal against the basis on which that assessment was made-that is, the criteria-and the third is an appeal against the decision about what funds or, indeed, services to allocate to somebody. I assume that the noble Baroness, Lady Masham, wishes to do all three of those, but I want us to be very clear all the way through these discussions about precisely what we are talking about, because those three assessments need to be done entirely separately.
	The noble Lord, Lord Tebbit, will understand that, although it is interesting to follow where the money comes from, it is absolutely essential that the analysis of need be independent. Not only might the individual user wish to appeal against that, but crucially their carers might wish to do so, because of the way in which those assessments are commonly done. I reiterate: please could we have some clarity about terms throughout this debate? The 47 amendments that have been put down show that this afternoon is all about clarity and definition, which may be the only thing that we achieve at the end of our debate. Therefore, we should be very careful about the terms that we use.

Baroness Thornton: My Lords, in replying to Amendments 3 and 39 in the names of the noble Baroness, Lady Masham, and the noble Earl, Lord Howe, I start by thanking the noble Baroness, Lady Barker, for her helpful explanation of the issues on which one might appeal. We recognise that clarity and transparency are important here. That is why we are putting a great deal of emphasis on developing what the department calls a national tool-I know that the noble Lord, Lord Tebbit, will cringe when I use that expression, but he knows what I mean-that all councils should use to assess people with the highest personal care needs to ensure a consistent approach. Therefore, people who are unhappy about their assessment, about the package of reablement or about the package of care should have the right to make a complaint to the council in the usual fashion.
	It is right that people should be able to pursue a challenge if they feel that the wrong decision has been taken. The noble Lord, Lord Tebbit, and the noble Baroness, Lady Gardner, highlighted why we will be asking the noble Baroness, Lady Masham, to withdraw her amendment. We do not wish to create a separate and potentially bureaucratic layer to deal with this on top of the existing complaints system. People already have an opportunity to pursue their case, if necessary as far as the Local Government Ombudsman. This House has discussed the work of the Local Government Ombudsman on previous occasions and noble Lords have remarked how effective and accessible the ombudsman has been and is. We are reluctant to create another mechanism over and above that, as that would add to the costs and the administrative burden placed on councils and it might create confusion for users.
	The noble Baronesses, Lady Masham and Lady Gardner, raised the issue of people being able to choose whether to stay at home or move into residential care. The purpose of the Bill is not to remove choice. We recognise that some people will choose to enter residential care-we will discuss the issue later in Committee. However, we are also encouraging local authorities to work with, for example, the voluntary sector to encourage the development of wider community services for older people who are lonely. Here the noble Baroness made an important point. She also asked whether it would be possible for the Care Standards Tribunal to deal with these appeals. I have already addressed that. The appropriate appeals system is already recognised in this area.
	The noble Baroness, Lady Gardner, and the noble Lord, Lord Lipsey, raised the issue of the incentive for people to stay at home because it is free when a residential setting may be more appropriate. The decision about the appropriate care setting for people should be made first based on the person's needs and whether they have carers who can help with some of them. The Bill will give people a breathing space sometimes to stay at home for longer, rather than going into residential care.
	Amendments 3 and 39 would require the Secretary of State to make regulations to establish a specific appeals mechanism for those who believe that they are entitled to indefinite provision of a free qualifying service but have been denied it by their local authority. I have explained why that is not an appropriate route to go down. As the noble Lord, Lord Sutherland, said, it is important that decisions on free personal care are as fair and transparent as possible. People who believe that they have not been treated fairly and that the criteria have not been applied fairly should have the right to challenge the local authority's decision. Refusals to provide free personal care that are felt to have been wrongly determined should be dealt with under the existing procedures. We intend that this area should be considered as part of the review policy within 12 to 18 months of implementation.
	Several noble Lords asked whether the system would be overburdened by appeals. As part of the review that will take place within 12 to 18 months of implementation, the issue of whether the appeals procedure is appropriate and working will be considered. I hope that the noble Baroness will accept that, while it is entirely right that people should be able to appeal and that the appeals system should be accessible, we should not create a new system on top of that which already exists.

Baroness Masham of Ilton: My Lords, I thank all the noble Lords who have spoken. This whole situation is very complex. One of the most complex things is that the people who have the highest personal care needs are going to be the ones that get it free. However, what happens to those who may not have the highest needs? Do they get nothing? I can see local authorities saying, "We haven't got any more money, so you can't have any help".
	What worries me tremendously when I think of people who may be diagnosed with motor neurone disease is the slowness of assessments. They need quick assessments and quick help and they sometimes do not get it. I would like to discuss this whole matter with Members such as my noble friend Lord Sutherland, who is an expert on these things, and with other noble Lords so that we can get something satisfactory written into this Bill to avoid confusion, because I am sure that there will be confusion-indeed, there is already a lot of confusion about this whole Bill. This issue needs looking at in depth.
	This afternoon has been useful, but it shows how difficult the whole situation is. A growing army of people are becoming more elderly and more disabled and need help. I will read carefully what the Minister has said and maybe come back on Report. I beg leave to withdraw the amendment.
	Amendment 3 withdrawn.
	House resumed.

Passports: Mahmoud al-Mabhouh
	 — 
	Statement

Lord Brett: My Lords, with the leave of the House, I shall repeat a Statement made in the other place by my right honourable friend the Minister for Europe. The Statement is as follows.
	"Mr Speaker, although new facts continue to emerge, let me set out the facts as we know them. On 19 January, Mahmoud al-Mabhouh was killed in Dubai. The first press reports about this death appeared on 28 January. On 31 January, the Emirati authorities confirmed to our officials press reporting that European passports had been used, and undertook to provide us and others with further details. This was followed up by embassy officials in Dubai and Abu Dhabi on several occasions.
	On 12 February, the Emirati authorities informed UK officials in London that UK passports might-I repeat, might-have been involved. On 15 February, they confirmed this and provided the details of six British passports involved. Soon after on the same day, they provided a full briefing to the media. On 17 February, the Prime Minister announced a full investigation by the Serious Organised Crime Agency. On 21 February, the Foreign Secretary spoke to Abdullah bin Zayed, the Emirati Foreign Minister, who confirmed that they would be sending us details of at least two further British passports that may have been involved.
	It would be wrong of me to prejudge the SOCA investigation. But let me make it crystal clear that no part of the British Government, either Minister or official, had any foreknowledge of Mr al-Mabhouh's killing or the use of British passports in it or of any clandestine operation being planned. To suggest otherwise is to make an irresponsible allegation without any basis in fact.
	I know that there is considerable concern among honourable Members about the possibility of the role of the Israeli authorities, so I should set out our exchanges with them. On 18 February, the Israeli ambassador came to the FCO for a meeting with the permanent under-secretary, and earlier this afternoon my right honourable friend the Foreign Secretary met the Israeli Foreign Minister, Mr Lieberman, in Brussels. He underlined the deep discontent felt in this country, in this Government and in this House over the issue. He made clear that we regard the killing of Mr al-Mabhouh as profoundly unhelpful for the cause of peace in the Middle East and stability in the region. He stressed that we require full co-operation from the Israeli authorities with the SOCA investigation.
	My right honourable friend said that we would stand ready to work with Israel on bringing stability and peace to the Middle East, but that we can only do so on the basis of trust and mutual transparency. Honourable Members are rightly concerned about the impact this incident has had on the British nationals involved. Our embassy in Tel Aviv has been in touch with all six of those whose passports have already been reported as having been misused. We will do all we can to ensure that they get the consular support they need".

Lord Howell of Guildford: My Lords, I am grateful to the noble Lord for repeating this Statement by the Minister for Europe in another place. Does he accept that a staggering number of questions arise from this deeply serious, bizarre and very sinister episode? These questions are quite aside from the facts of the apparent assassination and whether it furthers in any way the cause of peace in the Middle East. Those questions are possibly for another time.
	We are left with some very ugly feelings indeed about our own passport system and its integrity. Does the Minister accept that the debasement of our passport documents and the apparent identity thefts involved in this case strike at the heart of our sovereignty and security, and can he confirm or elaborate on what assurances the Government of Israel have given that there has been no abuse of any kind of our intelligence co-operation with them? That is very important. Can he explain a little more, even at this stage, how on earth these passports were forged, if they were forged, or cloned, if they were cloned-or were they copied or stolen? Were they older British passports without microchip technology, or were they the newer documents, in which case can we draw the conclusion that this sort of thing is now less likely to happen?
	How soon did the Government first learn of these passport thefts? The Statement tells us that the assassination took place on 19 January, and that, apparently on 12 February, the British were warned by the UAE authorities that British passports might have been involved, which was confirmed on 15 February. Almost a month passed between the killing and the information coming to light, which seems an extraordinarily long time. At what point was the Serious Organised Crime Agency involved? I understand that the agency operates from a base in the British embassy in Abu Dhabi. Was it aware of the impending difficulties and the involvement of British passports before 15 February, or was it news to the agency as well?
	Does the noble Lord agree that this is very worrying indeed for a number of groups? At present, British passport arrivals in the UAE get a visa waiver. I say "at present", and one hopes that there is no question of that changing. However, does the Minister accept that all passport holders-especially those travelling in the entire region where we have good friends and maintain good relations which we wish to develop and strengthen; and particularly all those whose identities have been stolen-really need swift and urgent reassurances that our system is secure and that this kind of thing can never happen again?

Baroness Falkner of Margravine: My Lords, we share the sentiments expressed by the noble Lord, Lord Howell of Guildford. These are very serious matters that touch on attempts to get a peace settlement in the Middle East, on the safety and security of our own citizens, and on the ability of our passport, intelligence and other services to secure the integrity of data held on British citizens. The Minister has given us the chronology of the events. That bare chronology is known to all, but two or three issues come out of it.
	If, as the Minister said, UK officials were told that British passports might have been used on 12 February, can the Minister confirm why it took until 18 February for the Israeli ambassador to be invited to a meeting with the head of the UK Diplomatic Service? The citizens of this country would expect that when their security is so endangered and when such a serious breach resulting in identity theft has taken place in what is ultimately an unstable part of the world, the UK Government would be slightly more agile in investigating the matter and calling in the relevant ambassador in a more efficient manner than the chronology reflects.
	Can the Minister confirm that the security of other data held on databases which we might share with Israeli government sources is not compromised? Can he also confirm that all measures are being taken to reassure these British citizens that their security is uppermost?
	To end, I ask the Minister to touch on the rather curious interpretation of events around the meeting of 18 February between the Israeli ambassador and Sir Peter Ricketts. It seems that it was inconclusive. We do not know what happened at the meeting, yet we are told today that the Foreign Secretary has met Israel's Foreign Minister, Mr Lieberman, and expressed his deep discontent. Was that not expressed to Mr Ron Prosor at the meeting on 18 February, and if not, why? What has changed between 18 February-four days ago-and today, to make the Foreign Secretary far clearer about the implications for Israel of this extra-judicial killing, as the Minister has just told us in the Statement?

Lord Foulkes of Cumnock: Before the Minister replies-

Noble Lords: Order!

Lord Foulkes of Cumnock: It is on a point of order. The annunciator has been saying for the past five minutes that we have been talking about the Personal Care at Home Bill. If we were in another place, we could raise a point of order and have this sorted. Members outside this Chamber do not know that this Statement is taking place.

Lord Skelmersdale: My Lords, unfortunately there are no points of order in your Lordships' House. Therefore, the Minister is due to answer the noble Baroness on the Liberal Democrat Benches, and my noble friend.

Lord Brett: My Lords, I apologise that the annunciator is not performing its duty. It was at the beginning. I hope that the earlier announcement, which was in green on the red annunciator screen, will have alerted noble Lords to be here.
	I begin by echoing the statements from both Opposition Front Benches-certainly from the noble Lord, Lord Howell-that we look at the integrity of UK passports with very great concern. We would be most concerned at any suggestion of debasement. I will try to deal with the questions in the order in which they came.
	First, in order to put things into context, I should say that at least two criminal inquiries are taking place: the SOCA inquiry into possible misuse of British passports, and, in the Emirates, a murder inquiry. I am not sure what will happen in our European partner countries whose passports also were misused-Ireland, Germany and France. We have to be somewhat careful, certainly in apportioning blame. I can do no better than to start by referring to the statements made by the Prime Minister and the Foreign Secretary on 18 February. The Prime Minister made it clear that we have to get to the bottom of this question, then we can see where we go and what remedial action to take.
	The noble Baroness raised the question of what the response of the Israeli ambassador was. I think that we saw it, because he made a brief statement on television. He simply said-I think that it is a fact-that he would take the message from the UK Government back to his Government. That was as far as he went. The meeting that took place today between the Foreign Secretary and his Israeli counterpart was requested by the Israelis some 10 days ago. I have related, as my colleague in another place has, the response of the British Foreign Secretary. In turn, we await the response of the Foreign Minister of Israel. I am sure this will be reported back to your Lordships' House in one form or another.
	The gap in time was the other issue that concerned both the noble Lord and the noble Baroness. Fifteen February was the first occasion on which we knew the names of the six British passport holders. We made inquiries between 12 and 15 February, but it was made clear by the police authorities in the Emirates that they wished to conclude their initial investigation before they contacted any other foreign embassy. It was only at the point when we received the passport details that we could start to investigate whether they were forged or real. We know now that they were not real. We are offering assistance to the passport holders and reassuring them about the reissue of passports and so on.
	We take seriously the compromising of the British passport system. To answer the noble Lord's question, these were current, not old, passports, but they did not have within them the facility that we have with biometric passports, which will be fully introduced by 2012 and will be much more difficult to forge. On this occasion, we do not know how the forgery took place and I am sure that that will be one of the issues that the Serious Organised Crime Agency will continue to investigate. We are seeking the co-operation of the Emirates and Israeli authorities in conjunction with our European partners, who also have an interest in this issue.
	As I say, we have not received any reassurances from the Israeli Government. At the moment we have no proof of an extra-judicial killing, whatever supposition we might have and whatever speculation there has been in the press. The Government should be commended for their clear and speedy response in setting up the SOCA inquiry, which will report to the Identity and Passport Service and, through it, to the Home Secretary. I am sure that when in due course that inquiry is completed, the outcome will be reported to Parliament.

Lord Wright of Richmond: My Lords, I am one of the many Members of this House who has long been arguing that we should be talking to Hamas. Does the Minister agree that, given the inevitable conspiracy theories that will arise from the use of British passports, it is essential that the Government condemn this crime? Whatever the circumstances and whatever the responsibilities, does he agree that we should condemn unequivocally the murder-the death-of a senior member of Hamas?

Lord Brett: The Statement is clear that we do not see this death-judicial, extra-judicial or whatever-as having any helpful effect on what every good thinking person wants: a solution to the Israeli-Palestinian problem that is acceptable to both sides. In that sense, it is certainly a setback.
	On the broader question, talks with Hamas take place indirectly. Hamas is talking to the Egyptian authorities, so it is not a question of it not being aware of the British Government's and other European Governments' views, or vice versa. However, we are not in a position where we talk directly to Hamas.

Lord Clinton-Davis: While recognising that the falsification of British passports was totally unacceptable, will my noble friend attempt to keep the matter in perspective? Did the deceased ever condemn the killing of innocent Israeli citizens by rockets aimed by Hamas?

Lord Brett: As I have indicated to your Lordships' House in the past, I do not find a great deal of benefit in attributing blame to one side or the other. Suffice it to say that there is enough blame to go round. On this occasion we are looking at a specific act which appears to have involved the use of British and other European passports. That is a matter of major concern. We have instigated an inquiry and we have sought the co-operation of the Israeli authorities by telling us what they know. It would be injudicious to go any further than that until we have some indication of the Israeli response and the outcome of the inquiry.

Lord Eden of Winton: Is the noble Lord aware that it was recently reported that a British passport-holder, on arrival in Israel, had the experience of having his passport removed? It was taken by the authorities and kept for 15 to 20 minutes-presumably long enough to photograph it-and then returned to him without explanation. Would the noble Lord look into that sort of matter?

Lord Brett: If the noble Lord would care to write to me, giving me chapter and verse, I will certainly pass it to my Foreign Office colleagues so that we can look into it. The truth is, when passports cross international borders, however briefly, that information is recorded in one form or another. The issues here are: how did these British passports get to be misused by whoever it was, and what is the implication for those and other British passport-holders?

Lord Tebbit: My Lords, the Government would be very wise to comment only on the facts which are known and to stay well clear of a great deal of the speculation. Sooner or later we may well learn more. When we do, there will be the occasion for further debate. But until then, I feel it is best that we let matters rest.

Lord Brett: I agree entirely with the noble Lord. Many Members of your Lordships' House have greater influence with the media than I have, and I would be grateful if that message was passed on.

Lord Foulkes of Cumnock: I, too, commend my noble friend on his Statement. I would have been able to commend him even more if I had been in to hear it, but unfortunately, as I said earlier, the Annunciators were not working. Since he is also a Whip, can he make sure through the House authorities that this thing is sorted out? I understand there is to be another equally important Statement, and it is important that Members, especially those of us who come from long distances, are given notice. The Member opposite on the Front Bench, clever as always, points out that the Annunciator has changed, but it took 10 minutes for it to change. Some of us not as lucky as the Front Bench opposite have offices on the other side of the street and we have to find our way over from there. There should be adequate notice of any Statement that is being made. Members outside this Chamber might have wished to take part in the previous Statement and might wish to take part in the next. Can my noble friend give us an assurance that he will take it up with the House authorities? What is the point of having someone sitting on the Woolsack all through these Statements if he has no power to do anything to alert Members as to when they are being made?

Lord Brett: My Lords, I shall take my noble friend's concerns away and discuss them with the House authorities. Many of us see conspiracy theories in lots of issues. In my lifetime, "cock-up theories" has proved to be a more accurate description. This was unfortunately a technical hitch or, as I put it very ungrammatically and in very poor language that is not acceptable in your Lordships' House, a cock-up.

Personal Care at Home Bill
	 — 
	Committee (Continued)

Amendment 4 not moved.
	Amendment 5
	 Moved by Earl Howe
	5: Clause 1, page 1, line 4, at end insert-
	"( ) In subsection (1), after "charge" insert "or charged at a prescribed rate ("preferentially")"."

Earl Howe: My Lords, I will speak at the same time to Amendments 6, 14, 16, 27 and 40. One of the main concerns about this Bill which emerged at Second Reading was the deeply unsatisfactory way in which its provisions cut across the key arguments and principles articulated in the Government's Green Paper of last July, Shaping the Future of Care Together. For my own part, I found that Green Paper to be an extremely helpful analysis of the issues that should be uppermost in our minds as we consider the long-term reform of social care provision. Two conclusions from the Green Paper were inescapable. The first was that, as a nation, we cannot afford to deliver free personal care to all who need it and fund this out of general taxation. Any attempt to do that will not prove sustainable over time because of the demographic trends which are already in evidence. Therefore, as the paper says, the foundation of the new system lies in the partnership option-that is to say, in co-payment of one sort or another.
	The Government are holding fast, as far as I know, to the conclusions of that Green Paper, but they are at the same time bringing forward a Bill which is completely at odds with it. The Bill is said to be a "bridge towards" a fully reformed social care system, but it is hard to see that phrase as anything more than just words. If the Government had been a bit straighter with us and said that the Bill was designed as a temporary stopgap in advance of long-term reform, that might have been a more credible and accurate description. I would have liked the Bill to point a clearer way towards the vision set out in the Green Paper; in other words, to be a genuine bridge and a genuine building block to long-term reform.
	To be that bridge, the Bill needs to open up the way to a much more varied and flexible set of options. We have already considered some of the pitfalls that look set to await us as a result of the lack of clarity in some of the definitions that will determine eligibility for free care. In any decision about eligibility, so much will be at stake that people are unlikely to take a refusal lying down. I genuinely fear an explosion of complaints, appeals and litigation.
	The obvious way forward is to preserve the core idea of a more generous deal for those in critical need of care, but to cut the cake differently so that there is a more graduated scale of preferential charging and therefore much less incentive for people to dispute the results of an assessment. The difference between having substantial needs and having critical needs will often be quite narrow. The difference between requiring help with four activities of daily living and requiring help with only three may be equally narrow. Therefore, I ask the Minister what thought the Government gave, as an alternative to offering free personal care to all those people with critical needs, to the idea of a graduated preferential scale of charging under which local authorities would be able to take into account not only the acuity of a person's need but also their personal financial means.
	I mention means-testing here with no apology. The cost-benefit analysis contained in the impact assessment seems to me the loudest warning bell, if any were needed, that we are in danger of creating an unsustainable system. People who can afford to bear some or all of the cost of their personal care cannot in the current climate be considered a more important priority than those without financial means whose need for care may be only very slightly less acute. I am no advocate of the postcode lottery, but I believe in local authorities having discretion to manage their finances in ways that they consider fair and affordable. The Bill takes that discretion away from them in a material sense, and it does so, as we will debate later, in a very unstructured and ill planned way.
	I have spoken up till now about the short term; the longer term should concern us equally. What are the ingredients of a sustainable and fair system of social care provision over, let us say, the next 100 years? To my mind, they are these. We should aim for a personalised service to enable people to buy the care that suits them best. One of the problems with the Bill, despite what the noble Baroness said earlier, is that it seems to cut right across the personalisation agenda, which, up to now, the Government have done rather well at. We need consistent national standards for the assessment of care needs. The Government are right about that, and I shall support them in their efforts to introduce them. We need to help people stay in their homes for as long as they can-again, the Government are right about that. We need also to find a way of protecting people from having to sell their homes to pay for long-term care. I should like to think that there is no disagreement between my own party and the Government on any of those four principles.
	I do not want to exacerbate the public spat which has been going on between members of my own party and Ministers in another place, but I would simply say that we on this side part company with the Government over their apparent enthusiasm for schemes and ideas which directly cut across one or more of the four principles that I have mentioned. For example, we do not think that it is helpful to disempower people by removing national benefits from them, such as attendance allowance, and disability living allowance.
	A national care service is a great idea, but if you mandate the service from the centre, and fund it centrally, it becomes inflexible and depersonalised. I do not think that that is the way to go. Equally, a compulsory state insurance scheme takes us in the wrong direction if we believe in empowering people through choice. It also acts as a strong disincentive to informal care, and I worry greatly about that.
	If this Bill is to act as a bridge towards a flexible and personalised system of social care, under the banner of a national care service, it needs to offer a greater range of possibilities than it does at present. It needs to factor in the likelihood that people will wish to provide for their critical care needs by means of voluntary insurance, and to allow for those who wish to engage in preventive health programmes, not simply reablement. To incentivise the take-up of those programmes, it needs to protect those who cannot afford to pay for personal care, while at the same time giving due recognition to those who are prudent enough to provide for part of the cost of their care from their own resources. It also needs to recognise the value of informal carers. In general, it needs to be more enabling towards local authorities, and less prescriptive in terms of the structure of care services which they commission and fund. It is against that background that I beg to move Amendment 5, and I hope that the Minister will feel able to move at least a little way in my direction.

Baroness Campbell of Surbiton: My Lords, I speak to Amendment 29, and I would like to thank the noble Earl, Lord Howe, for allowing me to pop in on his amendment group. This is a much better time for me, and I thank him.
	It is a privilege to have this opportunity to again raise the vital issue of social care portability. It is so fundamental to the basic human rights of disabled and older people. Many noble Lords will remember the very positive debate that we had when my amendment on portability was debated during the passage of the Health and Social Care Act. Strong cross-party support then led directly to the commitment in the recent social care Green Paper to work towards a national care system with portability at its heart. I promised noble Lords during that debate that I would give portability my forensic attention. I am therefore very glad that I am today able rather modestly to place an amendment to make that commitment a reality for 280,000 disabled and older people with the highest support needs who are anticipated to qualify for the new free care provision.
	The effect of my amendment would be to ensure that the new free personal care provision is portable between local authority areas. People who qualify for free personal care in one local authority area would be entitled to move to another, in the certainty that they would continue to receive that free care without anxiety, disruption or delay. The amendment achieves this by placing a duty on the receiving authority to pick up funding responsibility for a person's free personal care for a transitional period without being required to carry out a further assessment. Authorities would also be required to take other steps to ensure that the person enjoys full continuity of support.
	It is vital that those with critical-plus needs receive seamless support if and when they move home to be near relatives. Delays as people wait for a new assessment could at worst be fatal and at best lead to grave health crises, putting disabled people and their families under enormous strain.
	The Government have pledged that the new free care offer will be underpinned by a common assessment framework that will help to iron out inconsistencies between authorities. Some say that this negates the need for a portability clause in the Bill. However, a common assessment framework will not guarantee that the transition from one authority to another will be seamless. A receiving authority will be required to reassess people who previously qualified for free personal care, even though their needs will not have changed. I will now hand over to the noble Baroness, Lady Wilkins, to assist me.
	At this point, Baroness Wilkins continued the speech for Baroness Campbell of Surbiton.
	It is widely accepted that local authorities fail in their responsibilities to deliver seamless support to disabled people who move between authorities. Continuity of support is treated as an aspiration rather than as a necessity. Many people I know are too terrified to move for fear of their support falling apart. If they do move, they face huge stress and hardship as they struggle to renegotiate vital care and support. It is these fears and this hardship that my amendment seeks to address, albeit only for those with the highest level of need.
	A major inspiration for the amendment, apart from a desire to address the harrowing experiences that disabled and older people face when moving home, is of course the desire to see human rights standards brought to life. The UK Government recently ratified the UN Convention on the Rights of Persons with Disabilities, which spells out that disabled people must be able to choose where we live on an equal basis with others, and that we have the right to work and participate in our communities and to be free from exploitation, violence and abuse.
	The amendment has strong support from the Equality and Human Rights Commission, which states that,
	"current arrangements place an unfair and inequitable restriction on freedom of movement and, at the very least, are very much against the spirit of the right to private and family life as set out in Article 8 of the European Convention on Human Rights ... the Commission supports enshrining portability within primary legislation. Any other approach would continue to restrict this fundamental human right".
	At this point, Baroness Campbell of Surbiton resumed.
	I am pleased to report that there are now local authorities out there itching to implement portability. I recently had the pleasure of being on the interview panel for the Department for Work and Pensions' Right to Control trailblazer sites. We were tasked with choosing eight local authorities to test the new Right to Control over one's support services. I was delighted to see that some local authorities put in their consortium bids, with one or two neighbouring councils, a right to portability. They did this to streamline support services between local authority boundary lines. Some are now very keen to test portability where once they were not. I think that this enthusiasm for portability, which really was not there one or two years ago, and certainly was not in the criteria for the trailblazer bids, demonstrates the beginning of a local authority culture sea change. Let us capitalise on that now, for we do not want best practice confined to only a noble few.
	My amendment is short, sweet and to the point. In many ways, it is cost neutral-we are not asking for more funding. As time is short, I will just say two things on the detail. The first is that disabled people are very aware that the exact level of direct payments and type of services available will differ from one local authority to another. We are realistic about that. We understand continuity of support to be about creating a support package that meets our needs, rather than replicating identical services. Secondly, I want to emphasise that it will be particularly important to spell out in regulations and guidance the need for user and family involvement in all arrangements made to support someone in picking up their new life in a new place.
	If the Government accept the need for action today, it will send a strong message of hope to thousands of disabled and older people in England that they may move without fear of reprisals. It will also keep the costs of this Bill down by ensuring scarce resources are not wasted on reassessing people whose needs have not changed. We have a momentous opportunity to test this out and make a start on portability, and I urge noble Lords to grasp it. I beg to move.

Lord Eden of Winton: My Lords, I support the amendment moved by my noble friend Lord Howe. In doing so, I confess to a certain amount of confusion in my mind. There is a possibility of conflict here between, on the one hand, the need for local authority autonomy and the ability that each local authority rightly has to administer and control its own budget as far as possible, and, on the other hand, the requirement-as put forward so ably by the noble Baroness who has just spoken-that there should be portability in the benefits or awards of assistance received by the individual in the event of a move from one local authority area to another. Will the Minister be able to clarify this for me? I am very much in favour of both but I do not quite see how we can have both.
	The operative word that seems to be missing throughout much of our deliberations is "flexibility". There must be flexibility in identifying the needs of the individual, in allowing for that individual to move from one area to another and for the local authority to manage its own financial affairs. These are the issues that need to be ironed out because if we ultimately go the full course and achieve in this country what the Government are evidently aiming for-the establishment of a national care service-that predicates a degree of centralisation, of central control, of central direction and of central funding. I am not happy about any of those things because we are dealing with real individual cases which need to be assessed at ground level by people qualified and trained to do so. I hope the Minister will help me out of my confused state of mind.

Baroness Turner of Camden: My Lords, I speak as somebody who supports the Bill and I am therefore somewhat confused by this group of amendments, although for a different reason from that given by the noble Lord who has just spoken. I do not support the amendment moved by the noble Earl, Lord Howe, but I support Amendment 29, which provides for a transition between one local authority and another. I think that was part of the Government's original intention when we discussed the Bill earlier. However, the rest of the amendments in the group, and particularly the Question whether Clause 1 should stand part, cut right across the general intent of the Bill, and I certainly would not be in favour of that. As I said at Second Reading, I support the intention of the Bill; I support what the Government want to do for these-mostly elderly-people who are in the neediest group. This is, I understand, a first step towards a much bigger national care programme, which I think many of us in this House would fully support. In the mean time, I support the Bill and therefore cannot support the amendments in this group, except Amendment 29.

Baroness Barker: My Lords, on my way here today I tried to work out how I would explain and justify to people what I had spent my afternoon doing. I set myself a goal: I would go through today's proceedings as though I were somebody who needed social care services, a carer or someone in the unenviable position of trying to organise this for a local social services department. I would try to get to the end with greater clarity and understanding about what the social care system in this country is. However, I have to say that it is not looking good at the moment. In fact, it is becoming more confused. That is an inherent problem when people talk of such things as a national care service without clarity about what it means. It is not about unanimity of provision; it is about agreeing about what care services are, who is entitled to them and how they are funded.
	That leads me directly to both of these amendments and to ask a question. I can see the intent behind the amendments of the noble Earl, Lord Howe, and I have a great degree of sympathy with it. We are, after all, talking about a system which has never met-and never will meet-all the social care needs of the country, and about trying to find an equitable way of ensuring that such resources as we have are best applied to people who have needs. My question for the noble Earl, Lord Howe, is: who would set the preferential rates for services? When we talk about care services, by and large we talk about people carrying out care tasks for individuals. The cost of employing people does not vary much, whether they are in the private sector or the public sector, or whether they are in different areas of the country. It might vary ever so slightly. What is the rate for a care attendant in one area of the country? It may differ, but only very slightly, in another. I ask the noble Earl, Lord Howe, how this would work in practice. Would it be up to local authorities to set different rates for different services, as they deemed them to be needed in that area? That would be interesting.
	I draw the attention of the noble Baroness, Lady Campbell, to the issue of portability. She said that we are not asking for more money. Care, in the terms of the Bill, applies not just to people providing care for others but to adaptations. The capital expenditure of adapting somebody's home might well be doubled if they moved. Both the noble Baronesses, Lady Campbell and Lady Wilkins, said, in relation to this amendment and Amendments 2 and 4, that personalisation and self-directed support now has a body of evidence behind it that proves that it is cost-neutral and cost-effective. I wonder whether they could both point me to that, as I have not yet seen evidence as strong as that. The IBSEN report on the pilots did not go that far.
	Given that cost is at the absolute heart of this debate, I should very much appreciate seeing the evidence behind both those statements. That will help noble Lords when we come down to doing what we ultimately all have to do-to work out what we believe to be the best use of finite resources for the best benefit of the most people. Noble Lords who listened to the "Today" programme with as much attention as I did this morning will know that my colleagues and I have concluded that this Bill does not represent that. We would use the resources in other ways that we think would be to the greater benefit of the greater number of people. In that context, I believe that these are fair questions and I would appreciate some answers.

Lord Tebbit: My Lords, I wonder whether the Minister can help us, or at least help me. I refer to the proposals made by the noble Baroness, Lady Campbell, and the number of people who might move from one local authority to another, as there is a tendency for people to do in their old age, or relative old age, or when they become disabled. Quite a lot do so, either from a high-cost residential area to a lower-cost one or nearer to relatives and things of that kind. Therefore, there is bound to be a certain number of people washing backwards and forwards across local authority areas.
	We can only guess at those numbers but it would help us if we had at least an idea of what was in the minds of Ministers as to the cost per individual involved in this scheme. How many people do the Government think will benefit? The Government's estimate of the cost of the whole thing is that it will be less than £650 million. I must confess that my reaction to that is "Come on, pull the other one". If the Government are going to stick to £650 million, how many people will be involved? That will give us an idea of how many of those people might be transients washing backwards and forwards across the boundaries.
	Is there a cap? The noble Baroness, Lady Barker, added the cost of changes to homes to make them possible for people to live in. It might not be just the cost of a stairlift; it might be a substantial lift at a cost of £15,000 or £20,000. The cost of a bathroom being adjusted can be £2,000 or £3,000. That is apart from the recurring costs. We have to have a better idea of what the Government think will be the cost per head of those people who will qualify for this care and how many of them there will be. That would help us a great deal.

Lord Sutherland of Houndwood: My Lords, not surprisingly, many of us had anticipated that as we probed into the details of the Bill we would find ourselves in a bit of a quagmire. It is quite a small Bill and quite a small area of quagmire, but my impression is that the depth is considerable and one gets out of one's depth very quickly.
	However, I want to support Amendment 29 put forward by the noble Baroness, Lady Campbell of Surbiton. I supported the principle of this at Second Reading and I have seen no reason to change my mind. Here, there is at least one bit of hard ground on which we can walk where there could be a significant benefit from legislation that we might advance this afternoon. The benefit would be in three contexts. One is the individual. By and large, people who need substantial care packages do not move for frivolous reasons. If they are moving from one authority to another, there will probably be a good reason, normally to do with folks who are relatives and potentially informal carers. The benefit there is clear and significant.
	However, there will also be a benefit to the local authorities involved. If someone with substantial care needs comes into a new area and has to be reassessed completely, that will involve significant time and the cost of their assessment, including professional time. One can be fairly sure that if significant capital costs are involved-which may well be the case, and that is a legitimate point to query-the move will, by and large, not be for frivolous reasons and there will not be a large number of people to whom this applies. They would not be moving if the capital costs were likely to be great, because the care needs would be equally great. The move would be for good reason.
	Thirdly-this point has been made-some of us believe that one of the more important features of the Bill is that it moves towards a national care service, involving a degree of equity between different postcode areas and local authorities. That would be one way of establishing equity in a very specific way. Costs borne by a new authority are running costs-I accept not capital costs-lost by another authority. Surely it would not be beyond our powers of intelligence to devise a way of transferring money if the costs were significant and substantial. I support the amendment.

Baroness Gardner of Parkes: I wish to speak to Amendment 29 in the name of the noble Baroness, Lady Campbell. It is right that people should have portable rights, but a valid point was made by the noble Baroness, Lady Barker, about capital costs. When someone dies, it is deplorable if all the wonderful appliances that have been put into a property are wasted. A neighbour had a stairlift for only two or three months. When she died, the executors were advised by the selling agents for her property, "Take out everything that could possibly look as if someone disabled lived here if you want to get the best price". The executors tried to get rid of the lift. No council or anyone else would take it or reuse it anywhere else. In the end, the executors managed to sell the lift back to the providers for about a third, or even a quarter, of what it had cost to install only a matter of months previously.
	It is important that if a property is adapted for special needs, if at all possible-and it should certainly be possible regarding social housing-that property should be passed on to someone else with special needs. Then the adaptations would not need to be so great and the loss to the council that had made the adaptations would not be so great.
	As regards portability, apart from anything else, it would be of benefit to the receiving local authority if it had warning that someone who rapidly needed special care was coming. It would certainly reduce the need for reassessment. That is an important point.

Baroness Masham of Ilton: I have a query on Amendment 29. If a person moves from one authority to another, it might be because their condition has deteriorated or because they have become older or more disabled and might need more help or reassessment. Therefore there needs to be flexibility. Does the Minister agree with that?

Baroness Campbell of Surbiton: Before Report, we should certainly look at the concerns of the noble Baroness, Lady Barker. It is my understanding that if you have a significant adaptation to your house, you are not, as part of the criteria, allowed to move or resell the house within five years. Such issues should be looked into.

Baroness Thornton: My Lords, for the ease of the debate, it might be simpler first to deal with Amendment 29 and then to move on to the broader themes that the noble Lord raised in his introduction and other noble Lords raised in the debate. Noble Lords will know that we are very much aware of the issues around greater portability of care, and it is something that will be addressed in more detail both in the review by the Law Commission into social care law and in the White Paper.
	The noble Baroness, Lady Campbell, raised the very important point about consistency of care and the difficulties faced by those who move between different local authorities' areas. This is an issue that we have discussed across the Dispatch Box and outside the Chamber for the past couple of years. I commend her persistence in her championship of this very important matter. We debated this during passage of the Health and Social Care Act, and I explained at that time that we certainly had a lot of sympathy and understanding about it. We do recognise the potential for disruption to patterns of care, which can be the reality for an individual who moves from one authority to another. We speculated about why people might do that, and the noble Lord, Lord Tebbit, did so as well.
	One thing that has not been mentioned-although I know that the noble Baroness, Lady Campbell, would mention it-is that this is also about, for example, young disabled people who go to university or who want to find a new job in a different part of the country. So we are not just talking about the elderly and elderly disabled. We are also talking about young people and their rights to fulfil their potential.
	This amendment seeks to reduce the impact of disruption by putting in place transitional arrangements so that an individual can retain their entitlement to free personal care until a new community care assessment can be undertaken by the receiving authority. I think that that addresses the point made by the noble Baroness, Lady Masham.
	I am grateful to the noble Baroness for identifying this issue, and I can confirm to her today that we intend as a result of her representations to include provisions to effect this transitional protection in regulations. The reason that we can do that, of course, is that we are seeking in the Bill and its regulations to make the assessments more standardised. So it is in keeping with the Bill and the direction of travel in terms of the national care service.
	This will mean that, in addition to being able to put into place emergency care services under Section 47(5) of the National Health Service and Community Care Act 1990 as at present, the personal care element must continue to be free until such time as the community care assessment is commissioned. So in bringing forward these regulations, we want to remove the requirement to amend the Bill. I therefore request that the noble Baroness, Lady Campbell, withdraw the amendment. However, I undertake to continue discussing the regulations with her and the organisations that support this activity.
	I hope that that also answers the points made by the noble Lord, Lord Eden, because the key is to allow an assessment to take place. It recognises that an assessment should take place eventually, and that will allow that assessment to take place in the new location. I therefore hope that that answers the point about how we maintain the integrity and independence of local services at the same time.
	I now turn to the other amendments in this group: Amendments 5, 6, 14, 16, 27 and 40, in the names of the noble Earl, Lord Howe, and the noble Baroness, Lady Morris of Bolton. I have a very long speaking note about local government finance, but since nobody has actually asked me about local government finance, I do not intend to inflict that on the Committee unless somebody asks me for it at a later date.
	I would, however, like to reflect on the issue raised by the noble Earl, that we regard the Bill as a stepping stone to the national care service and, indeed, to the White Paper. I do not know whether he used the word "transition" or a similar word, but we are not far apart on the direction of travel or on the fact that the Bill's proposals will help us to achieve what we want to do in creating a national care service. At the conference last Friday-at which other parties were present though the noble Earl's party was not-my right honourable friend Andy Burnham expressed similar sentiments to those reflected in the remarks that the noble Earl made about what we are looking for and the consensus that we are seeking.
	My right honourable friend said that the current system is unsustainable and unfair and that we wish to move to a system that includes preventive services and provides the right support to enable people to stay independent for as long as possible. A national assessment should be established whereby care needs are assessed and paid for in the same way across the country. Services should work together smoothly and information and advice should be available to enable the care system to be easily understood and easy to navigate. Personalised care and support should be integrated and based on people's circumstances and need and there should be fair funding. Money will be spent wisely and everyone will get some help to meet the high cost of their care needs.
	The Bill is a step towards setting up a national care service and is evidence of the Government's commitment to an area which has been neglected for far too long. It is a shame that the noble Earl's party chose to walk away from the discussions but I hope that they will walk back into them in the next parliamentary Session and that we can solve these difficult and important issues in the way that many organisations are calling on us to do; that is, together as a nation. There is no question but that there are still huge challenges in the care and support system. The Green Paper sought people's views on how we resolve those challenges and how we create a sustainable system in the long term. The White Paper will develop those proposals and will be available soon.
	The noble Earl asked about the differences between three and four ADLs and how that would work. We recognise that there will be challenges in delivering care to people with the highest needs and that some people may be on the wrong side of that divide. We are also very mindful of the overall costs of this scheme. However, this is an interim measure before we introduce our proposals for long-term reform of the care and support system. This measure is designed to help those with the highest need. Our wider proposals on the transformation of social care will encourage investment in prevention, early intervention and supporting individuals.
	The noble Baroness, Lady Barker, said that there was no evidence that personal budgets are cheaper. The IBSEN report showed that personalised services were no more costly than commissioned services, though user satisfaction was increased, and the evidence from councils introducing personal budgets is no less strong.

Baroness Barker: Unfortunately, that short statement does not encapsulate a very big, detailed report, which came out with some extremely tentative conclusions. For example, the costing for personalisation that the noble Baroness cited was predicated on the fact that there would be no significant increases in the cost of employing care staff. It is important that we are absolutely clear about the costs of what we are talking about and do not make sweeping assumptions. If we are not accurate about costing, we will head off into unsustainability in a different fashion. That would be equally as wrong as the faults in the Bill to which a number of noble Lords have already pointed.

Baroness Thornton: I take the noble Baroness's point and recognise that she is much more expert on that issue, through her work and experience, than I am.
	I turn to the specific amendments. They seek to give powers to the Secretary of State to require local authorities to charge for personal care at a set rate. I accept that the noble Earl is testing whether that would be a preferred system. This would mean that a centrally set figure would be decided upon and an amount of personal care would not be provided free of charge, but rather would be charged at a prescribed or preferential rate. Any personal care requirements beyond this set figure would then be free of charge. Clearly, this proposed amendment is not in line with the purpose of the Bill. The Bill aims to provide free personal care at home to those with the highest needs, providing freedom from worry that they will be unable to meet the costs of their vital personal care. Should local authorities be able to charge for elements of care at a prescribed rate, it would continue, we believe, to add worry and distress to those who have the highest levels of personal care. They would be in fear of a bill landing at the door, as is indeed the case in the current system.
	We are content with our estimates for the funding of this policy. We therefore believe that these amendments are unnecessary and would resist Amendments 5, 6, 14, 16 and 27.
	Amendment 40 would broaden the regulation-making power under Section 15(5)(a) so as to expressly say that not only would regulations make different provision for different prescriptions of qualifying services; they could also make a different provision for different circumstances. We do not believe that this amendment adds anything of substance, because Section 15 already gives the Secretary of State power to make a different provision for different qualifying services. Coupled with other existing powers to prescribe circumstances in which services would be provided free, we therefore already have the power to prescribe different circumstances in which different qualifying services are to be provided free. I therefore ask the noble Earl and the noble Baroness not to press these amendments.

Lord Tebbit: The Minister must have lost the piece of paper, which I am sure she has been handed by her officials, giving the estimates that the Government have made of the costs involved and how much people will be able to draw under this. I am sure that the officials have passed a piece of paper to her. Would she be kind enough to give us the figures, if she does not have them in her head?

Baroness Thornton: I can give the noble Lord the overall costs of this scheme, which, as we are well aware, are £670 million. I can also tell him how that will be allocated across local authorities. It will then be down to local authorities to decide the best way-within the framework of the assessment, the tool that I referred to earlier-for that to be distributed and what people would get under, for example, the reablement scheme. Another noble Lord referred to adaptations, which we will be discussing in greater detail later. I think that that noble Lord referred to the cost of a lift. Of course that would have to be offset against the potential cost of someone being in a care home for many years. So it is not possible for me to say £10,000, £1,000 or £500, because it would depend on the individual circumstances of that person. It may indeed be cost-effective to spend thousands of pounds on installing a stair lift in a home because it would mean that that person could stay at home and be independent and would not need to go into a care home, which may cost a great deal more.
	I did not have a piece of paper and I did not expect one which would tell me what the individual grant or availability would be for a person, because it would depend on the assessment for that person.

Lord Tebbit: I am most grateful to the noble Baroness, and understand some of her difficulties; but perhaps she could tell us how many people the Government estimate will benefit from this £650 million, or whatever it is?

Baroness Thornton: Our estimate is that 400,000 people will benefit. The estimate is not that 400,000 people will have all their care costs met: that figure is likely to be between 100,000 and 130,000 people. However, within the envelope of support in terms of reablement and the support that people could receive, our estimate, which has not been significantly challenged, is that 400,000 people would benefit from the programme.

Baroness Gardner of Parkes: Perhaps the Minister could clarify that. Am I correct in thinking that the number of people who will newly benefit from this-those who are presently paying their own expenses-will be about 130,000 and not 460,000?

Baroness Thornton: We have never said that 460,000 people will receive all their care costs. We estimate that the number of people who would receive the total care package of all their costs being met would be somewhere between 100,000 and 130,000. I will clarify that number, because I cannot find it in my notes. The total number of people who would benefit from this in different ways would be 400,000.

Lord Tebbit: My Lords, perhaps I might check with other noble Lords whether I have the decimal point in the right place. We are talking about roughly half a million people-400,000, but we will call it half a million-sharing the benefit of about £650 million. That would appear to work out at £1,300 per person. Have I got the decimal point in the wrong place?

Baroness Thornton: The noble Lord has not got the decimal point in the wrong place. The figures work. I am not sure what other information the noble Lord wants. I am happy to write to him with much more information. Four hundred thousand people will benefit; 130,000 will receive re-enablement; 110,000 will receive free care for the first time; and 170,000 will receive care entirely or partially free, based on a means test, and will continue to do so. The 280,000 figure plus the 130,000 figure add up to 400,000.

Baroness Campbell of Surbiton: Before the noble Earl, Lord Howe, responds, I thank the Minister for her extremely constructive response to my amendment. There is clearly a firm commitment on her part to breathe some life into the principle of portability that I have pursued for a number of years. I am not yet entirely sure whether the solution that she proposes would achieve all that my amendment would, but we have a chance to make real progress. I will seek an early opportunity to meet her and her officials to discuss the government proposal on the regulation, and look forward to achieving a significant degree of continuity of care for those with critical-plus needs through good, firm regulation.

Earl Howe: My Lords, I am grateful to all noble Lords who have taken part in the debate, and to the Minister for her reply. I am glad that she did not give us the benefit of a short talk on local government finance: no doubt we will come to those matters later when we talk about the affordability of the Bill.
	I agree with her that there is only one way forward when it comes to reform of long-term care, and that is cross-party consensus. By definition, we should look at a long-term solution that will hold good for many decades to come.
	I share her wish that the parties will come together and find a common way forward. It was partly for that reason that I wanted to see this Bill as a genuine bridge towards long-term reform, because I fear that to describe it as a bridge at present is an inaccurate use of words. The problem I have is that it is too narrow in its scope and too prescriptive. It might be worth my quoting to the noble Baroness a short extract from page 16 of the Government's Green Paper. It states:
	"Because care and support costs can be so high, we think that the Government should provide some support to everyone who has to pay them. We therefore propose that, in the new National Care Service, everyone who qualifies for care and support from the state should get some help with paying for it".
	That is a much more tenable and intellectually respectable approach than the one which the Bill invites us to take.
	The noble Baroness, Lady Barker, asked me about the kind of preferential system that I was trying to advocate. Maybe she and other noble Lords were not here to hear me talk through that idea. You can achieve it in several ways with varying degrees of central prescription and local autonomy. My amendment would not rule out any particular solution. For example, you could have a graduated scale describing a varying acuity of need, defined centrally, as the foundation for a graduated charging system. That could be moderated at a local level by consideration of people's financial means and the affordability of certain charging bands.
	Revised fair access to care services guidelines could well act as the basis for a more sophisticated charging structure, but you would leave it to local authorities to decide exactly how the available cake should be cut. Free care for those in critical need would not be precluded under my amendment. It could still be prescribed in regulations. However, you would at the very least avoid the cliff edge which the Bill will create in terms of its perceived unfairness towards those whose care needs are deemed to fall very slightly short of the level eligible for free personal care at home. That, in a nutshell, was where I was coming from. However, I have no fixed views on how one would structure this. It is for discussion.
	That is as far as we can go at this stage. I am grateful for the noble Baroness's comments, upon which I will reflect. I beg leave to withdraw the amendment.
	Amendment 5 withdrawn.
	Amendment 6 not moved.

Baroness Pitkeathley: If Amendment 7 is agreed to, I cannot call Amendment 8 for reasons of pre-emption.
	Amendment 7
	 Moved by Lord Lipsey
	7: Clause 1, page 1, line 5, leave out subsection (2)

Lord Lipsey: First, I apologise on behalf of the noble Lord, Lord Warner, whose name is first appended to this amendment. An ocean separates him from us at the moment, but he will be back to participate at Report stage. Actually, at 12 o'clock our time, an ocean also separated me from this House. So if I am a little less coherent than I would otherwise be, I hope I can crave your Lordships' indulgence.
	Noble Lords will realise that this amendment goes to the heart of the injustice that is built into the Bill. It is an injustice that was well described by the noble Lord, Lord Turnbull, in the debate on Second Reading. When the Bill takes effect, a very typical case of an older person will run like this. The person needs a bit of help at home, but they have money of their own so they do not get any help. More and more, councils are restricting the little bit of help that would enable them to stay at home. Suddenly the person reaches a threshold where they fail four activities of daily living-you have to be in pretty poor shape to fail four ADLs-whereupon the Government will pay for the whole of their care. The person can continue to live at home like that for a while, but there comes a day when they are not able to do so in any sensible way and they have to go into a home. On that day, not only does the person lose their home, not only are they suffering from extreme physical disability and often dementia, but they also have to pay in full.
	This is an injustice that it is impossible to defend and it is why, when the Government published their excellent Green Paper on the subject, it produced the words just used by the noble Earl, Lord Howe, to the effect that whatever the setting in which someone gets their care, perhaps the state should meet part of the cost; that is, part of the cost if you need care at home and part of the cost if you are in a home and need care. That is not what is being proposed in the Bill. The proposal is that you get your care paid for in one setting only-at home.
	In response to an earlier debate which touched on this subject, the Minister said that the kind of care you get should depend on your care needs. That sounds very plausible. I can imagine the person writing the words for the brief perhaps even believing them as they did so. But of course that is largely a nonsense because for the great majority of people it would be possible to be cared for in their own home until they die if sufficient resource was applied. It would be possible if they had full-time care from trained nurses working eight-hour shifts. I once saw a woman aged 101 receiving such care in Northern Ireland. With full-time care, the doctor popping in as often as needed and the complete re-equipment of the home into a sort of mini nursing home, it could be done, but it would be unaffordably expensive. It is simply not economic to provide one-to-one care 24 hours a day to someone in that situation, but it could be done.
	Equally, it is possible for people with rather low care needs to go into residential care. Some individuals prefer residential care, odd though that seems to most people. It is not a question of the need that determines this; rather, it is a question of what is best when reviewing both the expert assessment and the wish of the person themselves about where they want to be cared for. I put particular emphasis on the latter half of that remark: the view of the person themselves is terribly important. What we are doing in this Bill as drafted is to build up a terrible conflict. The person is almost bound to want to be cared for in their own home. Not only is it perhaps a nicer place to be, but everything in the home is free. The local authority, on the other hand, has every incentive to put the person into a home because then they will have to pay for their own care. If they are in their own home, the local authority has to pay for the care. I am sure that we will come back to this at some length later in the day.
	It is perfectly evident to anyone looking at the figures with an ounce of objectivity that the Government's assessment of the cost of this policy to local authorities is a grotesquely unrealistic underestimate. It makes no allowance for what will certainly happen, which is that many people who at present are paying for their own care at home or not getting any care will suddenly emerge as claimants. Anyway, we need not speculate because we know what has happened in Scotland. There the cost of care in someone's own home has doubled in just five years, leaving the original cost estimates in tatters, as will be the estimates of this Government. That is why this inequity in the treatment of people in their own homes and in homes cannot be allowed to persist. I am not arguing that care should be free everywhere-far from it. I say that the Government should be making whatever contribution is felt to be affordable and appropriate whatever the setting in which people are receiving care.
	I want to add a second leg to the argument, which is as follows. We have not begun to conceive of the process that is going to be let loose by this piece of legislation. We heard about the Local Government Ombudsman and the Health Service Ombudsman already being swamped by appeals as to who should pay, but when this piece of legislation comes in with this built-in, grotesque unfairness, where will people go? Are they going to say, "Oh, I am sure this local authority officer who has come to see us is right-mum should go into a home and run down our inheritance"? Of course they are not. Today, we have personal injury lawyers stamping the land, offering their services to people who get hurt in accidents. I see a lot of their adverts because they are always on during the horseracing in the afternoon, where people are trying to look at ways to pay their gambling debts. Just as we get those personal injury adverts, up and down the country firms of solicitors will be set up seeking judicial review of every case that comes before them.
	The case of extra care homes-the second of the amendments in this group I have tabled-is an example of the kind of thing that will happen. Systems like this get gamed; we know this. People will start gaming the system to try to turn whatever accommodation they are in into something that can be described as their own home. For example, care homes might start selling the rooms in which residents live to the individual within them, so that the rest of the care can be free. It is far from clear that extra care homes will be properly eligible-it depends on the nature of the care coming in. I read the Commons debate on this matter, which went on for some time. The answer given by the Minister-Mr Phil Hope, a man for whom I have some admiration-would not convince anybody that the Government are on top of this problem. The definitional changes and the ranks of lawyers looking to cash in on human misery as a result of these provisions will be absolutely enormous.
	As so often, I finish in the same place as the noble Earl, Lord Howe. We need a consensus on this matter; I believe this would include a contribution from the state to care, whether it is in a care home or care at home. We need a consensus above all, but this Bill cannot provide a consensus. That is why, in the amendments that will be tabled this afternoon and in voting at subsequent stages, we shall have to make provisions to ensure that the Bill cannot go through before there has been a general election, which may well lead to a situation where the support of a single party-perhaps I should say a single Prime Minister-is not enough to determine what the right state of the law in our land should be.

Baroness Murphy: My Lords, I have added my name to Amendments 7 and 10, and I support the words of the noble Lord, Lord Lipsey. In these amendments, we want to explore the boundaries that are proposed, the knock-on effects on other funding systems, and particularly the rationale for providing care funds only for those living at home. This was criticised widely at Second Reading, and I want to point out that three very different predictions were made then about the impact this would have on the use and costs of this Bill.
	In my speech at Second Reading I predicted that financial incentives to stay put would deter people from going into residential care at the point at which it was clinically and socially desirable. There have been numerous times when I, as a clinician, have seen spouses or daughters absolutely exhausted and on the brink of a breakdown caring for an elderly person with dementia. By the way, it is usually not the activities of daily living which are the most stressful problem; wandering, emotional and behavioural difficulties and failures of recognition are far more likely to be the straws that break the camel's back. At some point, it almost feels as if you want to insist for the sake of the carer's health that a residential home place is found. If there are real financial incentives to maintaining a person at home, these decisions will be even more difficult.
	Keeping people at home is an explicit aim of the Bill-a laudable one in many cases-but whenever one introduces financial incentives of this kind, it is remarkable how the flow of patients in and out of institutions changes.
	I remind noble Lords of the major expansion of nursing homes and care homes which came about in the 1980s, the direct result of the funding of care places through individual, generous grants via social welfare budgets, which then created thousands of new residential places. One-third of business expansion scheme grants-the investment miracle of the Thatcher years-were invested in the care home sector. Care homes were, of course, basically property investments; but property companies were at first excluded from the BES initiative and so the care home sector was an attractive alternative as long as revenue was guaranteed by the Government. I used to watch the Laing and Buisson figures of the growth in residential care places with utter amazement. For a time I acted as an investment adviser to '3i' because the business investment companies were so worried about how much BES money was channelled through these schemes into care homes. They were very worried about the quality of what they were investing in-rightly so, as it turned out. It was a classic case of the Government having a genuinely philanthropic policy hijacked for the benefit of the small business community to the growing frustration and disbelief of the Treasury.
	It did not last long, of course. In both the USA, where expansion was similarly funded by Medicaid, and in the UK our Treasuries soon woke up to the escalating unaffordability, but here, in 2010, we have witnessed a 15-year decline of the care home sector, although with some suggestion that sheer demographic pressures are now reversing that trend again. Even small shifts in incentives can have major impacts. There has been no modelling of the impact of this Bill on other revenue streams in spite of the theoretical impact of the ADL deficits on the demand for care and the need for modelling.
	I was predicting in one direction and the noble Lord, Lord Turnbull, at Second Reading, cited the care needs of his mother-in-law, pointing out that after a classic hip fracture and hospital stay, at the very moment her care needs went up from perhaps 30 hours a week to 168 hours a week, her eligibility for financial support went down. That cannot make sense. Crucially, this fails the test set out by the Minister in her exposition of the Bill when she said that those with the highest needs must receive the greatest help. It was that injustice more than the issue of costs to which the noble Lord, Lord Turnbull, objected. A financial obstacle is being erected to prevent decisions being taken which are in the best interests of the elderly person.
	The noble Lord, Lord Turnbull, and I were predicting in one direction but the noble Earl, Lord Howe, made the crucial point that there is an intermediary body which is going to be the vehicle for this new funding-the local authority. If the total cost of delivering the Bill should exceed the budget, local authorities will have to find whatever extra money is required. In other words, they are being landed with an open-ended commitment, not fully funded as expressed in the famous "new burdens doctrine". The noble Earl pointed out how predictable would be the response of local authorities. He suggested that there would be a stampede of applications for free personal care and, when the money available is used up, local authorities will do their utmost to avoid having to take more people on to the books, and we will find pressure being placed on the elderly to move into residential care instead of staying at home. It will prove harder for people to pass the test of eligibility.
	Alternatively, and perhaps additionally, in order to fulfil their obligations to those in critical need, councils will be forced to remove social care funding from those who are in lower categories of need. To the extent that this happens, it may drive some people out of their homes and into residential care, thereby serving to dilute the main benefits of the Bill, which is supposed to enable more people to avoid or delay entering residential care. I further predict that, just as used to happen, very dependent old people will end up in acute hospital beds and acute psychiatric units. I hate the phrase "bed blocking"-which means a very frail, needy, older person whose health and social care needs are being denied to them-but that is what we will see. So we have four unpredictable scenarios which have not been explored and I would like the Minister to explain what work is going on to clarify which of these scenarios is likely.
	Amendment 10 follows up the point made in Committee in the Commons by Andrew Lansley, who wanted to be sure that extra care accommodation would be regarded as a person's home and not residential care for the purposes of this Bill. People who live in extra care housing have their own self-contained homes, their own front doors, and a legal right to occupy the property. Extra care housing is also known as very sheltered housing, assisted living, or simply "housing with care". It comes in many built forms-blocks of flats, bungalow estates and retirement villages. But it can, and does, sometimes provide an alternative to a care home, and that is the nub of the problem. In addition to the communal facilities often found in ordinary sheltered housing, domestic support and personal care are also available, provided by on-site staff. Properties can be rented, owned, or part owned and part rented. The Government say that people who live in sheltered accommodation or extra care housing are not to be excluded on the grounds that:
	"The accommodation and care provided in such accommodation are not provided together but under separate arrangements made by the individual".
	The problem is that the increasing numbers of these types of schemes-which I was involved in developing myself when there was lots of Housing Corporation money around-are now providing 24-hour care seven days a week in exactly the same way that care homes do. That marvellous organisation, Methodist Homes for the Aged, or MHA, has, for example, at Moor Allerton resource centre in Leeds a 20-bed extra care scheme especially for people with dementia. It serves as a direct alternative to residential care. MHA established their housing association arm as a subsidiary of their well known care homes charity in order to benefit from the split in funding and also, admirably, from a wish to continue to provide even the most disabled older people with their own homes, however much they needed personal care and support. I applaud them for it.
	But while the philosophy of care may be different, extra care housing in reality provides identical personal care and nursing services. There are at present only 25,000 or so extra care housing places, whereas there are 500,000 care home places. So maybe the Minister is not too worried about the outright favouring of the minority who find one of these schemes available in the area as an alternative to a care home. Nevertheless, does the Minister agree that, as soon as legislation of this kind is introduced, large numbers of care-service providers that currently make provision by way of a single contract with people-one that provides accommodation and care together-will suddenly find it desirable to provide different separate contracts for accommodation and care services? In just this manner, I and my colleagues in Lewisham managed to close long-stay beds for people with dementia in Bexley and Cane Hill hospitals and provide tenanted accommodation in conjunction with South London Family Housing Association-now part of the Horizon Housing Group-as similar to a specialist care home as to be indistinguishable, but all our residents had personal tenancies. In other words, they were indistinguishable from a residential care home. Is it not peculiar that if people are in extra care housing and they have two contracts-one for care and one for accommodation-they are eligible for free personal care that pays their care needs, but if identical care is provided under one contract it will be charged for. I cannot see how this flaw in the legislation can be reconciled. We could end up with a distortion in the care market with large numbers of care providers recreating their services so as to distinguish between accommodation and care. The Government, whether intentionally or not, are creating a potential loophole for people who are currently in long-term residential care who would not be regarded as being in extra care housing. They will inevitably restructure their arrangements at the point at which they enter care in order to make themselves eligible for free personal care. The Bill does nothing to prevent this from happening. That seems to be an obvious flaw in the legislation-unless this is the intent, but I doubt it. Personally, I have always been an advocate of separating housing and support costs but this is not the policy intention and I fear that we are going to end up with a great confusion.

Baroness Barker: I wish to speak to my Amendment 13 in this group. The noble Lord, Lord Lipsey, talked about the criteria for social care and their tendency to lead to gaming. My response to that is: whatever criteria exist for social care or NHS continuing care, there will always be somebody who endeavours to get round them for good or for ill. The noble Baroness, Lady Murphy, set out in considerable detail quite a number of government policies surrounding community care. Every one of these policies has a direct effect on the care market in some way. My small and perhaps seemingly innocuous amendment is about the distortion that I think may happen and that is that the services which local authorities currently provide for people with moderate to high needs-which enable many thousands of people and their carers to carry on-will go in order to meet the demands of this Bill. Over the weekend noble Lords might have read about what is likely to happen in the Isle of Wight, where local authorities will simply no longer be able to provide a number of services which have been in place, including telecare and so on.
	At Second Reading I talked about the fact that back in the days before the NHS and social care were funded to the extent that they have been through this Government, the capacity of mangers mostly, but also frontline staff, in social care and the NHS to bat older people back and forth between them, in order to avoid having to pick up the costs of their medicines, adaptations or care, was considerable. That has not been the case for about the past 10 years, but when the NHS is looking down the back of the sofa for money and social care is ripping up the floorboards because it has already looked down the back of the sofa, it will happen again. Older people will find themselves being pushed between one and the other. At that point, what the law says is of utmost importance. I point noble Lords to the fact that the title of this clause is: "Free provision of personal care at home". It is not free provision of care to people living at home. There is a world of difference to a social services department that has no money between those two different phrases. Does care at home mean only care in a person's home or does it mean care to a person who lives in their home? As the noble Baroness, Lady Murphy, said, how do you define a home that is eligible under this Bill? That may seem like utter pedantry but on it rests the fate of thousands of people. I want to draw to noble Lords' attention the fact that there are thousands of older people who are unable to remain living at home because they and their carers use services in their locality but not in their homes.
	We need to take into account the collateral damage to services provided in the community to people who have substantial, high-care needs that keep all the older people in an area-and their carers-going. They are at risk if we are not absolutely clear about the definition. Does the Bill refer only to services in a person's home, or services provided to them as they live at home in order to keep them living at home? It may be pedantry, but it is of the upmost importance in these matters.

Lord Best: I shall speak against Amendment 10, which seeks not to apply the provision of free personal care to people in extra-care accommodation. I have to declare my interest as chair of the Hanover Housing Association, which is the largest provider of extra-care housing in the UK. Although the provision that those in extra care should receive their care free may present an anomaly, to remove-

Lord Lipsey: I am sorry to interrupt the noble Lord. The purpose of the amendment is precisely the reverse of what he said; that is, to make sure that personal care is free in extra-care accommodation.

Lord Best: Then I withdraw my objection to the amendment.

Earl Howe: My Lords, my understanding of the amendment is the same as that of the noble Lord, Lord Lipsey. It is confusing because the Bill is presented to us in a rather piecemeal form and one has to fit the jigsaw pieces together. The Government are saying to us, I think, "Those living in residential care will not get their personal care free, but by residential care, we don't mean extra care". I think that that is how it fits together.
	Much has already been said very well by other noble Lords and I shall not take the time of the Committee in repeating it. However, I return to the theme of gaming, which was raised by the noble Lord, Lord Lipsey, the noble Baroness, Lady Murphy, and, in her own way-very ably-by the noble Baroness, Lady Barker. I share her view that precision in language and terminology is of the utmost importance in this Bill.
	I set aside whether the exclusion from the Bill of those living in residential care amounts to unfair discrimination-we shall come that question later when we discuss the European Convention. What troubles me is the word that the Government have chosen in subsection (2). I should like to hear the Minister explain what will stop a care home operator who currently provides residential care by way of a single contract dividing himself into two or more legal entities such that the contract from one legal entity, which relates to the residential accommodation, is separate from the contract from the other legal entity, which relates to the care services. In that situation, as the noble Baroness rightly indicated, there would in law be two providers operating side by side, one the equivalent of a hotel, the other the equivalent of a domiciliary care service. In those circumstances, what will prevent the recipient of those services claiming eligibility for free personal care?
	The Government's answer, as I understand it, has been that the potential loophole will in practice be closed off by the Care Quality Commission and the registration system that will be put in place. I need the Minister to explain to me what that answer means, because I do not understand how the CQC will be in a position to influence the situation one way or the other. We may well end up with a market that is very distorted, with large numbers of care providers reconstituting their services in a different legal form that distinguishes accommodation from care. As the noble Baroness, Lady Murphy, said, that after all is what extra care amounts to. We have heard that someone living in extra-care accommodation will be treated as living in their own home for the purposes of this legislation.
	In practice, the effect is little or no different from care delivered in a residential setting. The legal dividing line which the Bill seeks to establish will in practice be unsustainable.

Baroness Gardner of Parkes: My Lords, I listened to the noble Lord, Lord Best, and I too was pleased to be reassured. Extra-care housing is ideal for people. Every smart investor running a care home will of course go for that, because it will be a great bonus for them. We should not create something that makes it more attractive; we should aim at that standard of extra-care housing for as many people as possible. We should not have this difference between accommodation in a residential home where people get all their care paid for if they are in a certain category, and another category where care would not be paid for. We are inviting such a situation with the Bill, because we are covering those who should be able to pay their own bills. I would love it if someone paid all my bills, but I would not consider myself entitled to it-I would think that I was not needy enough.
	The money should be spent on those who have real need. I find it strange that we are so concerned to bring in a law that will help only an additional 110,000 people, according to the answer that I had from the Minister earlier in our debates. The points raised by the noble Baroness, Lady Barker, about the damage that might be done to the services now available, were sound. Local authorities are very concerned that instead of being able to continue the amount of help they are currently giving to the most needy, in terms of assistance and finance, help will be so enlarged as to cover those who could well afford to pay their own bills. We risk doing away with services that are vital to those who cannot pay and who may find their services reduced. I support the amendment.

Lord Sutherland of Houndwood: My Lords, the noble Lords who have proposed Amendment 7 make a very important point-that one of the great dangers of the Bill is that it drives an even deeper wedge between so-called care at home and care in residential contexts. As the noble Baroness, Lady Murphy, made plain, all the efforts of those working in detail in this field have been devoted to trying to break down a very rigid distinction between being cared for at home and being cared for in a residential institution. They explored extra care in the community, the use of residential homes for other purposes and a whole range of options, including the possibility of housing associations being involved in creating sheltered accommodation of an even higher standard. The risk is in the Bill. I hope the Minister can indicate how it will be dealt with.
	The point has also been well made that, however pure, kind and noble you are-and I have worked for years in the academic world, where the intellectually pure apparently multiply-you soon learn how to follow the money. The Bill will suggest ways of following the money, which is another great danger. People are very inventive, often for the best of motives and reasons.
	I get fed up speaking about Scotland, but I have to say that the increase in expenditure on care at home in Scotland is not a mistake but a deliberate policy, because the Scottish Government have set out to meet the wishes of people, which is, if possible, to remain in their own home and to reduce the costs. One of the ways in which they are doing that is by making it more attractive to remain at home than to go into far more expensive residential and nursing-care accommodation. That is the reason for the shift in cost, and you can see that the cost of residential care has pretty well stabilised. To do that is quite an achievement, but it is being done because they are finding cheaper and more appropriate ways of providing care.
	There is, however, a real lesson from Scotland here, and I think that this relates to the point that the noble Earl, Lord Howe, was making. Scotland does have a divide between what you might call hotel costs, or accommodation costs, and care costs. The hotel or accommodation costs for those in residences are still means-tested. The picture of freedom and free supply of cash for everything is not the case. These costs are means-tested. They have ways of dividing them off from the actual costs of care, and in Scotland they make a contribution to the cost of care. So the danger to which he points-that such a division will be brought into place here in a way which distorts the system; it does not distort it in Scotland, it is deliberate-is real, and there is an example of how to do it.

Baroness Turner of Camden: I may be mistaken, but my recollection is that a number of years ago, there was a commission that made recommendations, and I think that my noble friend Lord Lipsey was a member of that commission. The majority recommendation was that nursing and personal care should be paid for, but that accommodation and care would-as already indicated-be subject to means-testing and so on. We now have a situation in which care costs and nursing costs are regarded as one, and I would agree with that.
	When the commission first made its report, I was in favour of it; but the report was not fully accepted by the Government, and so we had the distinction made between nursing and personal care. I always thought that that was not a very good division to make, because it very often came to virtually the same thing. In Scotland it was not accepted, and I see from an article which recently appeared in the Times thatthe allegation that Scotland is not managing to meet that cost is said to be quite untrue, and that Scotland is in fact managing those costs quite well. If this is what is intended in this section of the Bill, I would certainly be in favour of that, because I never believed that there should be a split between nursing and personal care. I always thought that they were the same care costs. If that is to be eliminated in this section of the Bill, then I would be all in favour of it.

Baroness Murphy: I would like to support what the noble Baroness, Lady Turner, has just said about that element. I absolutely agree that it has always been an absurdity that nursing and care costs, both of which are related to the way in which an individual is cared for, should be separated. Any move away from those artificial and ridiculous distinctions is to be welcomed. My anxiety about this clause is that we are unfortunately imposing new definitions and new trenches down which people can fall, and new cliffs to fall over, making them ineligible. That adds to the difficulty. I agree with the main thrust of the thoughts of the noble Baroness, Lady Turner.

Lord Tunnicliffe: My Lords, this group of amendments deals, in one form or another, with the Bill's provision on what counts as care at home. However, each amendment addresses rather different aspects of the provision. I shall therefore begin by making some general points about this aspect of the Bill.
	First, it is important, and has been an aspiration of this Government for a number of years, to support people in their own homes. That is what people tell us they want, and indeed it has been supported by the Audit Commission's report Under Pressure,which was published just last week. This report highlighted that there is a growing trend towards care at home which meets the needs of people who need care and is something to which local authorities should aspire. We recognise that there are different residential settings, however, and so it is important to have a debate on what is classed as a person's home. We want to retain the flexibility in our definition to maintain the intention of the Bill while recognising that different settings or models of care may emerge over the coming years-something which we all know will need to happen to meet the needs of our growing ageing population.
	The intention that underlies the Bill is that people with the highest care needs should be supported to live at home. We have made the specific point in the Bill that it is important that those adults who are part of an adult placement scheme, living in a family, do not miss out on this opportunity. It is therefore important to make it explicit that, for the purposes of the Bill, such adults are to be considered as living at home. In our opinion this is the only situation which is required to be excepted from the six-week restriction on free provision of personal care in accommodation where care is provided as an integral part of that accommodation.
	In other situations it should be clear that people are either living in accommodation where care is provided as an integral part of that accommodation-a residential care home-and are not eligible, or living at home and may qualify for free personal care.
	Some people have sought to argue that a residential care home could re-badge itself as extra-care housing and enable its residents to have their care free of charge. This is not about residential care or re-badging. We have always made it clear that it is about people living in their own homes for longer. Residential care is not the same. In any case, as was debated in another place and made clear there, where providers seek to change the provision of their services, it is for the regulator, the Care Quality Commission, to ascertain that they meet the relevant registration criteria.
	Others have argued that residential care is a cheaper option than helping people to live at home. However, the experience of many local authorities shows that appropriate interventions and support-the right housing, adaptations and equipment, including telecare-can help people to live at home at a lower cost than going into residential care. Indeed, as I said a little earlier, last week's report by the Audit Commission, Under Pressure, made these points most effectively and forcefully. Local Authorities must invest in new models of care. It is no longer acceptable for them to invest in the same old models of care-home care and residential care-as they have in the past.
	For some people, and at the right time, entry to residential care may well be the only option. We do not want to close off this option. However, the majority of people say that they want to stay in their homes for longer, and the provisions in the Bill will enable them to do so. We recognise that, by introducing this policy, there may be perverse incentives for local authorities to encourage people who would otherwise have funded their own care to move into residential care, thereby saving the cost of free personal care. However, that would be a completely short-sighted approach. Not only does it not deliver what the individual or the family wants-a little extra help that would allow them to stay at home for longer-but we know that entering residential care prematurely can lead to individuals running down their assets and then becoming a charge on the local authority. Surely it is better for the person and the council to invest to deliver more cost-effective care at home and to support local citizens to fulfil their wishes to stay in their own homes for as long as possible.
	However, I also recognise that while it is important that this Bill supports people to stay in their own homes for as long as possible in order to live more independent lives, this does not mean that every care activity needed to support them happens inside their own home. Sadly, there may of course be situations where somebody is not able to leave their own home at all. For others, however, having support in the community is beneficial and maximises their ability for independent living in their own home. The Bill supports that principle and does not seek to prevent this; on the contrary, we will develop guidance which reflects that as good practice. I will talk a little further about that when I discuss in detail the specific amendments in this group.
	Amendment 7, in the name of the noble Lords, Lord Lipsey and Lord Warner, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy, is clearly a wrecking amendment. It wrecks the fundamental essence of the Bill by removing subsection (2), which is the linchpin of the Bill. To accept this amendment would prevent us being able to ensure that those in the highest need could receive free personal care at home for more than six weeks. This is clearly against the spirit of the Bill and should not be supported by anyone who supports the principles underlying this Bill. We therefore cannot accept this amendment and urge opposition to it.
	The Bill is about specific help for a specific group of people: those in greatest need. I believe that my noble friend said earlier that it would help 280,000 people, as well as the 130,000 who will be helped by reablement. It is about doing this now. It is the first step of a total package. We have confidence in the estimates, and we have gone through the figures with ADASS.
	The Bill is not the same as what is happening in Scotland. The other place has agreed to the basic concept. This House has given the Bill a Second Reading, which enclosed the basic concept, and I do not intend to participate in or respond to a further Second Reading debate at this point.
	Amendment 8 would require that regulations specified every setting that was not considered to be a person's home for the purpose of provision of personal care, and therefore every setting of accommodation where the six-week restriction to provide free personal care would still apply. We consider that the proposed definition as set out in the Bill accurately describes and excludes a range of different settings that are not to be classed as a person's home. These exclusions are necessary because we wish to encourage and enable people to remain in their own homes where that is what they wish to do.
	Were we to specify the specific different settings that should be excluded, that could require numerous changes to regulations as the nature of service provision changes over time. That seems unnecessary and undesirable. We are encouraging councils to look to provide care in a wide range of settings to meet people's changing and longer-term needs. Where providers wish to be seen to change the provision of services to benefit from the provisions, it will be for the regulator, the Care Quality Commission, to ascertain that they meet the revised registration criteria. We are not willing to accept this amendment, as the proposed definition set out in the Bill is accurate. I therefore hope that the noble Earl, Lord Howe, will withdraw his amendment.
	The Bill seeks to remove restrictions on existing powers and will allow us to require people with the highest needs living at home to be provided with free personal care indefinitely. Amendment 10 from the noble Lords, Lord Warner and Lord Lipsey, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy, seeks to make it clear in the Bill that personal care for people living in extra-care housing can potentially be required to be provided free indefinitely.
	We believe that such an amendment is unnecessary. As the Bill already provides in new subsection (4D), a person should be considered to be living at home as long as they are not living in accommodation provided under Part 3 of the National Assistance Act 1948, or in accommodation where personal care is provided together with that accommodation. That definition of living at home would include a person living in extra-care accommodation as it would be neither Part 3 accommodation nor accommodation where personal care was provided together with that accommodation. That is because in extra-care housing, care and accommodation are provided not together but under separate arrangements made by the individual.
	We would certainly seek to encourage people who wish to stay and receive the care they need at home to consider extra-care housing, as well as other forms of supported living such as sheltered housing, because they allow individuals to continue living independently. Because this setting of accommodation is already adequately covered by the provisions of the Bill, I hope that the amendment will not be pressed.
	The noble Baroness, Lady Murphy, brought out a series of predictions and potential downsides. We have committed to review this legislation after 12 to 18 months and in that review we will see whether those predictions turn out to be true, but we believe that the predictions that we have made on cost and on numbers served are sound and will be borne out by experience.
	Amendment 13, tabled by the noble Baroness, Lady Barker, raises an important point: these provisions should seek to ensure that those living in their own home are supported to do so for longer. However, it is important to reflect on the fact that this does not necessarily mean, as I believe the noble Baroness wishes to indicate with this amendment, that all the support activities needed to help the person must be carried out in the home itself. The noble Baroness used the example of a person whose needs were best addressed through being bathed in a day centre because it was not possible to make the necessary adaptations to their own bathroom at home. They should certainly be offered that.
	We will ensure that this area is covered fully in the statutory guidance that we will be developing to provide support to local authorities. For that reason, I do not consider that this needs to be in the Bill. While I do not accept the noble Baroness's amendment and ask not to press it, I very much agree and commit to taking forward its principle.
	The noble Earl, Lord Howe, as ever, made interesting points about the Bill. He was particularly concerned about "gaming" and language. That is a fair point, but we believe that many of the issues will be resolved in the development of regulations and guidance. With regard to the issue of residential homes being re-badged, we have said that the Care Quality Commission will create a definition that will stop that happening. We believe that the legal dividing lines will be practical, although we cannot go further into why we believe that. If it proves useful to elaborate on that in a letter, I will certainly send him one.
	The noble Baroness, Lady Gardner of Parkes, referred to the number of people who will be helped. As I said earlier, some 280,000 people will be helped with support at home and some 130,000 by reablement.
	I hope that some of the comments that I have made will meet the points made by the noble Lord, Lord Sutherland. The noble Baroness, Lady Turner, was perhaps giving us an insight into the broader picture that will be revealed in the coming weeks when we publish the White Paper.

Baroness Masham of Ilton: My Lords, before the Minister finishes, I have one question. How is he going to make inflexible local authorities flexible?

Lord Tunnicliffe: My Lords, this is almost the centre of every debate that we have about how we deliver services. An awful lot of us here have served in both national government and local authorities. There is a perennial tension between, for example, local authorities and the health service. At the end of the day, we must believe in good will.
	There has been some reference to this being an area where we have to develop consensual politics. Many of us have the same common belief that services delivered locally are a good thing, but nevertheless there has to be intrinsic equity between the delivery of those services. There will be tensions between what we specify nationally and how that is interpreted, but one hopes that in this new world of consensus which I think even the noble Earl, Lord Howe, has promised us, we will be able to solve those problems.

Baroness Murphy: My Lords, has there been any specific financial modelling on our Amendment 7 regarding the impact of the new funding systems on other service streams? We have heard a lot about the interrelationships between care funding modalities.

Lord Tunnicliffe: I do not believe that there has been specific modelling. My understanding is that the fragility of the assumption you would have to make to do the modelling would make that modelling a not particularly valuable exercise. If that is an incomplete answer, though, I will write to the noble Baroness setting it out more completely.

Lord Lipsey: My Lords, anybody listening to these debates might find them becoming increasingly surrealistic. There is a debate going on in this Committee between people with real depth of knowledge of this area-I include people like the noble Lord, Lord Sutherland, with whom I do not see altogether eye to eye, and also the noble Baronesses, Lady Turner, Lady Murphy and Lady Barker-and Ministers, doing their best to inject a show of conviction into reading out the notes prepared for them by their civil servants, who are themselves trying to inject a note of conviction into defending a policy that has been handed down to them by the Prime Minister and has no intellectual substance behind it, other than what they have managed to cobble together in the few months since he delivered his imprimatur.
	That came out particularly in the remarks made by the Minister, in saying that this is about getting local authorities to invest in new models of care; it is unfair to expect him to be a great expert on long-term care and it is always great to see him on the Front Bench. Of course local authorities need to invest and to invest heavily in new models of care, but the plain and simple fact of the matter is that they will not have the cash to do so, because they are spending it all on free care for the Prime Minister's targeted electoral group. That is the reality of the situation.
	There is no point pursuing this argument further with the Government, save to say this. The Minister said that he was not going to have a Second Reading debate because the House of Commons voted in favour of this Bill. That is perfectly true, but since then, Nick Clegg, the leader of the Liberal Democrats, has this morning announced that they made a mistake in doing so. He has thought it through and-I give him great credit for this-he has changed his mind and is now against the Bill. I hope that he is not the only one. In view of these debates, I hope that before we get to Third Reading the Government themselves may think again about this Bill and see if we cannot yet make this a stepping stone on which a consensus reform could be built. I beg leave to withdraw my amendment.
	Amendment 7 withdrawn.
	Amendment 8 not moved.
	House resumed.

Prisons: Early Release
	 — 
	Statement

Lord Bach: My Lords, with the leave of the House, I will now repeat a Statement made in another place by my right honourable friend the Lord Chancellor and Secretary of State for Justice.
	"With permission, Mr Speaker, I should like to make a Statement on the release of prisoners under the early release scheme known as end of custody licence, or ECL.
	This scheme will be brought to an end on 12 March this year. All prisoners who are eligible for release on ECL on or before 12 March will be so released. Prisoners who have as of today been formally notified, under form ECL3, of release dates under the scheme up to and including 9 April will also be released. No prisoners will be released on ECL from and including 10 April.
	In the last 13 years the prison population has increased dramatically. When I became Home Secretary in May 1997, it stood at 60,335. The most recent published figure was 83,820 on 19 February. Predicting the prison population and matching places to meet demand has always been difficult and inevitably imprecise. I can certainly recall early release schemes on three separate occasions-in 1984, 1987 and 1991-when the Government of the day faced crises in handling pressures upon the prison population.
	In June 2007, my predecessor as Justice Secretary, my right honourable and noble friend Lord Falconer, introduced ECL to manage temporary pressures upon the prison estate and to guarantee that prison places were available for all those sentenced to custody. The end of custody licence enabled prison governors, under existing prison rules, to release on licence, up to 18 days before the end of their sentence, offenders who had been given a determinate prison sentence of four weeks to four years. The scheme specifically excluded offenders convicted of serious violent crimes, sexual offences subject to registration requirements, those who had broken the terms of temporary release in the past and foreign national prisoners who would be subject to deportation at the end of their sentence. It was later amended to exclude anyone convicted of terrorism-related offences.
	ECL was explicitly introduced as a temporary measure. I have always said that we would end it as soon as we could. I have always recognised that, while necessary as a temporary measure, it was inherently unsatisfactory and potentially damaging to public confidence in justice-confidence which is otherwise high, particularly in the light of falling crime. I have therefore told the House on a number of occasions that I would bring it to an end as soon as it was safe to do so. My right honourable friend the Prime Minister has underlined this, for example on 7 May 2008, when he said at Prime Minister's Questions: 'When we have built up the number of prison places ... to ... 86,000, we will make ... decisions on the right thing ... about early release'. We are now at that point, and we are there because we have worked hard to increase the capacity of the prison estate.
	As a result, prisoners have not been held under Operation Safeguard in police cells since September 2008, nor in court cells since February 2008. The House will wish to compare this to 1991, when a total of nearly 376,000 nights were spent by prisoners in police cells or court cells.
	Twenty-seven thousand additional prison places have been provided since 1997, 6,700 of them since April 2007. We now have well over 86,000 places by way of operational capacity, with headroom of 2,500. We anticipate that withdrawing the scheme will increase the prison population by around 1,000 to 1,200 prisoners. My assessment is that on the basis of our plans further to increase the capacity of the prison estate, we can safely manage the forecast prison population this year, in 2011-12 and beyond. We are on track to provide a total of 96,000 by 2014 through our capacity-building programme.
	Given the headroom available in the estate, we are therefore in a position to end the scheme. This does not mean, however, that there is no longer pressure on prison places. The system continues to operate at levels which are close to capacity. I pay tribute to all those who work so hard to protect public safety and help offenders turn their lives around.
	Protecting the public is the first priority of this Government. We have acted decisively to tackle crime. The use of prison has been central to that. Prison will always be the right place for the most serious, persistent and violent offenders. It is vital if we are to protect the public.
	There are 75 per cent more serious and violent offenders in prison than in 1997. People who commit serious offences are going to prison for longer. Indeterminate sentences have been introduced for the most dangerous offenders; more than 5,000 have been imposed by the courts in the first three years of the scheme. We will continue to make sure that there are places for them.
	At the same time we have also introduced tougher, more visible and effective community sentences and are giving communities a say in the types of projects offenders carry out. In the case of less serious offenders, such non-custodial sentences can often be a better alternative to prison in terms of turning an offender away from crime and further cutting reoffending rates.
	We are also working hard to implement the findings of the Corston and Bradley reviews on women and mentally ill offenders. I am clear that in such cases diversion away from prison is often the best approach for both the offender and the wider community. We will continue to examine the number of women and mentally ill people in prison.
	The results of the Government's strategy are an overall fall in crime of 36 per cent since 1997, the most substantial and sustained reduction since the war. Violent crime is down by 41 per cent according to the British Crime Survey, the most reliable measure. The chances of being a victim are at their lowest for a generation.
	We have transformed the justice system into a public service, one focused upon the needs of victims and the law-abiding majority. We will continue to do so. I commend this Statement to the House".
	My Lords, that concludes the Statement.

Lord Henley: My Lords, I thank the Minister for repeating the Statement. I remind him that we welcome the end of this scheme; he knows that we always opposed it. I also remind him of just why this scheme-which has led to some 8,000 criminals being released early, of whom some 1,500 were violent-was necessary. Those released went on to commit some 1,500 crimes. The scheme was introduced because the Home Secretary and his predecessors failed to provide sufficient prison spaces. They failed to do so because the then Chancellor and current Prime Minister failed to provide sufficient money, as requested by the then Home Secretary, for those spaces. I would be grateful for confirmation of that from the Minister.
	I have several questions resulting from the Statement to put to the Minister. The first relates to the timing of this announcement-just weeks before what we expect to be the announcement of a general election. Many of us are somewhat suspicious that the timing of this announcement might have something to do with the fact that there is to be an election some time later in the year. Can the Minister tell us exactly when the Government planned to make this announcement? Have they changed their minds on that? Was there any debate within the department about when it would be made? Can he, with a straight face, tell the House that this announcement is being made at this time without any consideration of the coming election?
	My second question is about the number of prison spaces. The Minister told us in the Statement that there are now some 86,000 places and, even with that figure, head room of 2,500. It is anticipated that withdrawing the scheme will increase the prison population by around 1,000 to 1,200 prisoners. He then told us that there would be some 96,000 places by 2014. Can the Minister tell us exactly when and how those places will come on-stream, particularly in light of the fact that we have heard recently of plans for prisons in north Wales and one in Dagenham being shelved? We have seen changes to the Titans and the mini-Titans. If the noble Lord-as I am sure he would not-went to his bank manager to arrange a reduction in some overdraft, I am sure the bank manager would say, quite sensibly, "Can you tell us how much you will pay off this year, next year, the following year, and so on?". Similarly, it behoves the Minister, when he answers, to tell us exactly when those extra places-that will take us from 86,000 to 96,000 places-are likely to come on-stream. It is no good saying that they will come on-stream by 2014, as if, magically, it will happen by then. We want to know how many will come on-stream this year, next year and the year after. We would like the Minister to spell that out in some detail.
	My third question is very important: how many prisons are currently over capacity? We know that the prison system itself is nearly over capacity. Could the Minister talk about individual prisons? We have heard of some that have reached 150 per cent or 175 per cent of their capacity. Can he confirm that and tell us which those are, what regional variations there are and what problems the prison estate is facing on that front?
	Fourthly, could the Minister address the question about the reduction in crime and violent crime? I put this question to him earlier in our debate in the Moses Room on the Motion from the noble Lord, Lord Carlile of Berriew. The Government boast about a reduction in crime and violent crime but, at the same time, they tell us that there are 75 per cent more serious and violent offenders in prison than there were in 1997. The two do not add up. Why is it that we have an alleged reduction in crime and violent crime and, at the same time, see a dramatic increase in the number of prisoners?
	Those are four small questions that I would like the Minister to address. No doubt there will be others from other parts of the House. We look forward to hearing his response in due course.

Baroness Hamwee: My Lords, I, too, thank the Minister for repeating the Statement, and for early sight of it. This is not a scheme which has had support. It was rushed in its introduction and poorly implemented, with no home circumstance check or risk assessment. It is a scheme which, as NAPO put it, wrong-foots other authorities. I, too, have questions.
	The first is on capacity. The Statement tells us that capacity has been increased. Is this because there is more doubling up, so that there is more overcrowding? If that is so, noble Lords will well appreciate that this must reduce the chances of rehabilitation, quite apart from giving an impression rather at odds with the reality. According to Ministry of Justice figures, in June 2009 the prison population was 111 per cent of the in-use certified normal accommodation. At the end of last September, 85 of the 140 prisons in England and Wales were overcrowded. However, the Government are now claiming that there is sufficient capacity safely to end the scheme. Has there been a dramatic change in the last six months? In 2008-09, almost 25 per cent of the prison population was held doubled up in cells designed for one prisoner, or three in a cell designed for two. When the Minister talks about extra prison places, would such a situation count as two prison places or one? If the former, it amounts to a significant and, I have to say, unacceptable fudging of the numbers. If the latter, when can we expect to see the number of prisoners held in overcrowded cells go down?
	The Minister talked of his assessment for the future. What assessment has been made of the places which would have been freed up if people who should not be in prison-such as the mentally ill and those with a drug or alcohol addiction-were not there and were treated differently? It seems shameful that we talk of capacity in prison places, not the community-based responses that are being brought into the picture, in the way that the Howard League report which we have just debated dealt with. After all, custodial sentences are, of course, the most costly.
	For clarity, I have one precise question: could the Minister confirm that the home detention curfew is not affected by this decision?
	Reconviction rates have risen as the prison population has grown, with two-thirds of all prisoners being reconvicted-so probably more than that are offending-within two years of release. That figure is 75 per cent for children; I deliberately call those under 18 children. Some prisoners released early under this scheme have reoffended and some have reoffended appallingly. What assessment or work has the ministry done to compare that with rates among those who are not on ECL or following ECL? In other words-and this is a fundamental question-what have the Government learnt from all this? What have the impacts been on individual prisoners? What has the impact been on the criminal justice system as a whole? It seems that there has been a scramble to apply the scheme and a scramble to end it, so we hope that something has been learnt from it.

Lord Bach: I thank both noble Lords for their comments and their questions, and I shall do my best to answer as many of them as I can. Above all, I thank them for their support for the measure that the Government have taken today.
	I was asked why we are making the announcement at this particular moment. As I think I said in the Statement, we have kept the situation under careful review ever since we introduced ECL-assessing the delivery of new accommodation, population levels and the latest prison population projections. Our assessment is that there is now a viable level of headroom in the estate to enable ECL to be ended. If there is and it is our judgment that it is safe to do so, then surely this is the moment to remove it.
	Regarding the general election, I am grateful to the noble Lord for reminding me that there will be one later this year. It cannot be that far in the future but I hope it is long enough for the party opposite to be able to tell us what its prison policy is. It seems to change day by day, with its leader saying on the one hand that more people should be in prison and its shadow Justice Secretary saying there should be fewer. No doubt in due course we will have a policy on that. That is the reason we have timed it as we have.
	So far as concerns capacity, at the risk of boring the House, this is how we see the position in the next few years leading up to the figure of 96,000 by 2014. This year we are planning to deliver just over 3,600 places, including two 480-place young offender institutions and the final 264 places at HMP Bure, which some noble Lords will know opened as a new prison on the site of the former RAF Coltishall in 2009. We are building two 600-place prisons-Belmarsh West in London and Maghull in Liverpool-and are planning to build a 1,600-place prison near to the existing HMP Featherstone, to be operational in 2012. Full planning permission is being sought in partnership with the Youth Justice Board for a new 3,600-place young offender institution at Glen Parva in Leicestershire. Therefore, this year there will be 3,650 more places, next year 1,400, and 2,600 more in 2012. It is hoped that the first of the new larger prisons will be open by the end of 2013. I hope that, in perhaps too much detail, I have answered the noble Lord's points.
	He asked about overcrowding. That is a perfectly legitimate question. Crowding is not evenly dispersed across the prison estate. It is particularly concentrated in local prisons-those that serve the courts of a specific area. There is less crowding in training prisons, where activities are targeted at reducing reoffending by providing constructive regimes that address offending behaviour and improve opportunities on release. All prisoner accommodation is assessed and certified by the Director of Offender Management in accordance with national guidance and the related performance standard for accommodation. Operational managers must ensure that each cell used for the confinement of prisoners has sufficient heating, lighting and ventilation and is of adequate size for the number of prisoners to be held in it. No prison will be expected to operate at a level of crowding beyond that agreed by the NOMS Director of Offender Management.
	The relationship between the reduction in crime, which has been substantial, and the number of people in prison is of great interest. It would be rash to say that there is no causal connection between the two, although I would not want to place too much emphasis on that. There are more dangerous, persistent and very serious offenders in prison now than before we came into power. They are also serving longer sentences. What effect that has on levels of crime is for conjecture rather than for definite view, and that is how I shall try to answer the noble Lord, Lord Henley.
	I am also grateful to the noble Baroness for her comments. She asked whether new places have been delivered by further crowding. The new capacity has been delivered both by substantial new blocks of accommodation and through ensuring that we are making best use of the current estate. For example, this year a new 480-place young offender institution has been delivered at Littlehey in Huntingdon and a 176-place house block at Swaleside. Therefore, it is mostly new capacity, together with the use of existing accommodation under the very strict rules and regulations that I have already read out.
	I know that the numbers in prison are a concern of the noble Baroness and of many noble Lords. Our policy is to ensure that serious, persistent and dangerous offenders spend time in prison in order that the public are protected, but that those who do not need to go to prison do not go there. That is why we have set up the community sentences and projects that I referred to when repeating the Statement. We think that is the right policy. We think it is paying dividends and that the moment has come when it is appropriate and safe to get rid of this particular scheme.

Baroness Masham of Ilton: My Lords, can I ask the Minister two questions? How was it that some serious prisoners were let out of prison early by mistake in the north of England, and will he take seriously some horrible offences by bullies towards disabled people living in the community, as highlighted by the recent "Panorama" programme?

Lord Bach: My Lords, I do not know the detail of the early release from the northern prisons. Unfortunately, errors are made from time to time in a system such as our prison system. That has always been the case. The House will recall the day when 500 prisoners were released early in 1996. It happens. Luckily, I think the case referred to involved a good deal fewer than 500. Was it two who were released early? These mistakes do happen. I cannot offer any other explanation for that.
	So far as concerns the noble Baroness's second question, I think I will have to take that back and, if I may, write her a letter about the situation that she describes.

Lord Ramsbotham: My Lords, I am always concerned when these figures are produced because they refer to operational capacity. As the Minister knows, two figures are always used. One is the certified normal accommodation and the other is the overcrowded or operational capacity. When I was the Chief Inspector of Prisons, I tried to get back the previous responsibility for inspecting cells and deciding what the capacity should be. It was not just a question of size; it was whether there was a bed, a table, a chair and a locker for every person in there.
	We confuse ourselves if we talk about operational capacity, because that is the overcrowded capacity. Can the Minister tell the House how many people are held over and above the certified normal number for accommodation in the prison system?

Lord Bach: My Lords, I am afraid that I cannot give that figure. For this decision to be taken, it was necessary for there to be some headroom between the capacity in the system and the current number of prisoners. If that headroom was too small, it would not have been possible to make the decision that we have made. But if the headroom is substantial-I have given a figure of 2,500 for the present time-our view is that it is safe to halt the early release scheme. That is what we have done today.

Baroness Miller of Chilthorne Domer: My Lords, the Minister referred in the Statement to examining the number of women prisoners and mentally ill prisoners. That is a very small and woeful ambition. He referred to the Corston report, which clearly set out the fact that most women in prison are not a danger to the public. Can he think of a more appropriate verb than "examine", such as "reduce"?

Lord Bach: I am delighted to tell the noble Baroness that there has been a reduction in the number of women prisoners since the Corston report was accepted by the Government. The figure is 5 per cent at this stage, and there is a target of a 10 per cent reduction by 2012. In that case, the noble Baroness is right to chide me. It is much more than examination; it is actual reduction. The Bradley report on mentally ill prisoners is more recent, and she will know that we have set up a cross-government scheme to try to implement the recommendations of my noble friend Lord Bradley. Our intention is to make sure that the number of mentally ill people in our prisons is also reduced.

Lord Elton: My Lords, I am very surprised that the Minister does not have the total CNA of the Prison Service at his fingertips. Presumably he has the figure for the total prison population. By putting the two together you can discover how many are in operational capacity but not in CNA. Will he please put those figures in the Library as soon as they are available? That is supplementary to the question of the noble Lord, Lord Ramsbotham.
	My observation is that his right honourable friend almost takes credit for the increase by 30 per cent in the number of prisoners on his watch, as it were. Does the noble Lord realise-I am sure that he does-that many in this House regard the test of success not in the increase in the number of prisoners or prison places but in the reduction in the number of places needed because of expenditure on preventive measures. A moment ago we were in court number 1; now we are in centre court. We were discussing how the system could be changed whereby it generated within itself the means of reducing reoffending. I hope that the noble Lord can assure us that the Government are also looking seriously at how to spend significant sums of money on preventing offending in its origins.

Lord Bach: My Lords, I could not possibly have done this job for the time that I have done it without knowing of the strong feelings of many noble Lords on this subject. The test is whether there is less crime, and less serious crime, than in previous years. On that test the Government have been very successful-more successful than any other Government since the Second World War. No one wants to send anyone to prison, but the fact remains that there are those, I am afraid, who commit serious and persistent crime or violent crime and who need to be imprisoned. I think that that is generally accepted around the House. However, the Government do not leave it there. They say that particularly for those who have committed less serious crime and where the alternative is a short period of custody it is better to press for harsh community sentences to be imposed on defendants. The figures seem to back this up.
	The Government are putting forward many schemes, including intense community orders, which are important in trying to wean people off crime. Another thing that takes people away from crime is their ability to get help at an early stage-possibly legal help-regarding social problems that affect their lives. The Government have a good record on that, too. Perhaps I may digress for a moment. I went to Blackpool on Friday and saw the results on an estate of the provision of new buildings, new schools, Sure Start projects, new educational establishments, more policemen on the beat, less crime and less fear of crime. It can and does happen in the community, but for those who offend seriously we believe that prison is the right option.

Baroness Howe of Idlicote: My Lords, I return to the figures given by the noble Lord, Lord Henley. I and many noble Lords find it strange indeed that violent crime is down by 41 per cent, yet that more and more prisons are being built as a result of all these extra people in prison. We have been listening to a very interesting debate in the Moses Room relating to the Howard League, which has done a brilliant job. I should like the Minister to expand a little on the route he started to go down. As crime is reducing by the considerable amount that he indicated, would it not be better to take a risk with some of the money that is being spent on building more prisons and spend it on very early preventive work, putting the money where it is going to matter?

Lord Bach: We spend a lot of money on preventive work. The Government have increased public spending on the kind of work that we believe discourages crime. However, if people offend seriously, are persistent in doing so and commit serious violence, in many cases there is no alternative but to send them to prison in order that the public is relieved of their presence-at least for the time being. The Government have a proud record on this. It is to try to improve the infrastructure of deprived areas in our country and to help people to obtain legal help whereby they avoid falling into the pit of crime. However, if they commit offences that are serious enough, they and others who may be tempted know that they will receive substantial prison sentences.
	I hope that the noble Baroness will forgive me if I use her question to respond on the CNA figures. At the end of January, the figure was 76,188 and the prison population was 83,378. I apologise for not having those figures earlier.

Lord Elystan-Morgan: My Lords, perhaps I may respectfully challenge the main thesis of the Minister in relation to the prison population. His case, put as always with great force and articulation, is that persons in prison are there because they have to be there. For 25 years I had the task of sentencing people, and I fully accept that persons who are dangerous must be in prison; there is no other place for them. I fully accept that persons who commit offences so outrageous that the public feel that there is no other place for them are properly in prison. However, that is not the situation. As the noble Lord will remember from what was quoted in the Grand Committee a few hours ago, 55 per cent of all prisoners have sentences of six months or less. They did not commit serious offences; otherwise they would not have been sentenced for such periods.
	My other point relates to an order passed by Parliament within the past few weeks which made 25 years the starting point when considering a sentence for murder involving the use of a knife, instead of the 15 years it had been hitherto. Two calculations were made of the effect that that would have on the prison population. One, from the Sentencing Council, estimated that the population would increase by between 500 and 1,500 places. The other calculation, by the noble and learned Baroness the Attorney General, estimated that the increase would be somewhere between 1,000 and 2,000. Does that affect in any way the calculation that the prison population will be no more than 96,000 by 2014?

Lord Bach: I will deal with the noble Lord's two points. We probably disagree about those who should be in prison and those who should not, but the Government accept that there are problems with short sentences. Good alternatives can be found, if the offences are not too serious, in serious community work, rather than sending people to prison. More than one noble Lord has asked how it is that crime figures can go down at the same time as the prison population goes up. Serious and violent offenders receive longer sentences, and so those sentenced some years ago will still be in prison. It is therefore hardly a surprise to see an increasing prison population for serious and violent offences, while also seeing a fall in that particular type of crime.
	As for his question on knife murders and the changes in the law, our estimate for an increase in the prison population as a result of increasing the starting point for tariffs for those convicted of murder with a knife-which is 25 years-will take a very substantial period of time to build up. We believe there will be no impact for 15 years or so; the effect will not be felt until the tariff these prisoners would have been serving has expired. While the figures are no doubt substantial, there is an area in which we will be able to study trends carefully and plan accordingly. Much will happen in the intervening period, and this point and the pressure that the noble Lord talks about will be factored into our future strategy for managing the prison population. So, as I understand it, these figures are taken into account in making our judgment.

Lord Hylton: My Lords, I would like to ask a question, which I hope is a constructive one, for the Government to take away and consider. What would they think of a new norm whereby in each prison, those prisoners with the best conduct report would be released in the event of that prison reaching its full normal capacity? Surely this would help to prevent overcrowding and provide a useful incentive of good behaviour. I have not given notice of this question and I do not expect a fully considered reply, but I hope that the Government will take it away.

Lord Bach: Of course we will take it away. The noble Lord has a great reputation and an interest in this field. The immediate danger is, if we did that, we would be back to early release in the same but different way from what we are just abolishing today. The court's sentence is of some significance in terms of when release is due, given that there are amounts allowed. Of course, if prisoners behave well, they benefit. Whether they should benefit by being let out of prison earlier than the judge intended is a difficult question.

Lord Maclennan of Rogart: My Lords, I recognise that the Minister is correct to say that persistent offenders may have to be incarcerated. What serious consideration are the Government giving to the findings of many who are concerned about imprisonment, that incarceration itself-and particularly long incarceration-contributes to the recidivism that is a characteristic of this country?

Lord Bach: The noble Lord, as always, asks a very pertinent question. The truth is that, in order to protect the public, some prisoners need to be locked up for a very long time. However, it is important that prison regimes have education proposals as well as other treatment, and I was quoting earlier-to use the noble Lord's phrase-in Court No. 1, the fact that huge amounts of money have been spent over the last few years to ensure that the prison regimes have much more education and drug treatment provision than was ever the case. It is just a horrible fact of life that there are people in our society who have committed such bad crimes that they need to be locked up for a long time. There is often hope for them, and I have seen this in prisons myself. I went to Foston Hall Women's Prison in the Midlands the other day, where I met a number of women serving life sentences. Every consideration was being given by excellent prison staff to helping these women get closer to the day when they would be able to come back and live in society.

Personal Care at Home Bill
	 — 
	Committee (Continued)

Amendment 9
	 Moved by Earl Howe
	9: Clause 1, page 1, line 11, leave out "personal"

Earl Howe: I shall speak also to Amendments 12, 31, 35 and 43. We come to an issue which I personally find extremely troubling and difficult. That is the impact which this Bill and its regulations will have on those people who, by any criteria, have care needs that are of the most acute kind, but who nevertheless will be deemed ineligible for free personal care under the proposed assessment criteria. I refer specifically to people who are deafblind.
	Deafblindness much surely be one of the most isolating and burdensome of disabilities, but it is important to understand that the kind of care which deafblind people typically need is quite different from the care usually given to a frail, elderly person. Deafblind people are often able to wash and dress and feed themselves, but without support in communication and mobility, many of them are effectively condemned to a life of solitary imprisonment in their own homes. It can be impossible for them to have access to food or basic information, and they are prevented from interacting with other people. Taking exercise, going out to the shops, visiting the doctor, dealing with household bills-all those things which we take for granted-are out of reach without physical help. Indeed, deafblind people are at extreme risk of having to go into residential care if their care needs are not addressed-exactly the imperative which has motivated the Government to bring forward this Bill.
	Yet this Bill will be of no use to those suffering from deafblindness, despite the fact that under the current FACS guidance, deafblind people are frequently assessed as having a critical need under the category that relates to involvement in family and wider community life. The Bill in its current form will undermine FACS guidance because it prioritises the provision of personal care over other types of care, such as communications support-the one form of help above all others that gives deafblind people a lifeline to the wider world. As such, the Bill appears discriminatory.
	Sense, the voluntary sector organisation which champions the interests of deafblind people, has submitted a paper to the Joint Committee on Human Rights in which it argues that the Bill violates the Human Rights Act. In particular, it says that a failure to provide adequate social care for deafblind people can result in a breach of Articles 3, 5 and 8 as well as Article 1, Protocol 1. I am not in a position to offer a legal opinion on the case that Sense has advanced. However, it needs to be taken most seriously.
	The Government justify the Bill's discrimination on the grounds that there are limited resources available. In saying that, they argue that their policy is directed to reach those who have the highest needs. The counter argument to that is that the policy is neither reasonable nor proportionate because deafblind people with the highest care needs will not receive care under this policy.
	Amendments 9, 12, 31 and 43 are designed to address these issues by broadening the definition of the kind of care that will be covered by the Government's policy. Amendment 35 takes a different approach deliberately distinct from that of Amendment 9 and the others. It is a much narrower amendment which would ensure that those deafblind people who have the greatest need and who are at most risk of needing residential care if their needs are not met may qualify for free care and support. I hope the Government will look at this. There is no doubting the recognition that Ministers have given to the unmet needs of deafblind people. Only in June last year they reissued the guidance document, Social Care for Deafblind Children and Adults. This guidance is aimed above all at social services staff. The case studies that Sense has provided to me, and I believe to a number of your Lordships, are of the most heartrending character. The noble Lord, Lord Low, has asked me to say how sorry he is not to be able to be present to support these amendments and to give the Committee a more graphic picture than I could ever give of the gravity of the disability that deafblind people have to endure. I am in no doubt that the needs of deafblind people should be factored into any revision of social care policy. Therefore, I beg to move.

Baroness Thornton: Again, I have a very long note about all the different issues that I thought the noble Earl might raise to do with Scotland and all sorts of other things which I will not inflict on the Committee at this point. I will deal with the very important deafblind issue that he raised and make one or two comments about the generality of the other amendments in the group.
	I absolutely accept the point that the noble Earl made about the gravity of the situation of deafblind people and the problems that they face. It is very important that their needs should be recognised. There is no doubt about that at all. The services concerned are clearly of high importance to people who are deafblind or have multiple sensory impairments. As the noble Earl said, specific guidance, updated and published in June 2009, advises local authorities that they must ensure that services provided to deafblind people are appropriate and that deafblind people are able to access specifically trained one-to-one support workers if they are assessed as requiring them. For that reason we published statutory guidance on that issue. I have an assurance that the guidance that we will produce will cross-reference with that guidance. However, between now and Report I will have discussions with Sense and its supporters to ensure that we are doing that in the right way because this is very important. I reassure Sense that we are taking these issues very seriously and that they are taken into consideration, if not in the Bill at least in the guidance that we will produce. I undertake to do that because, apart from anything else, I want to reassure myself that this is okay.
	Amendments 9, 12, 31 and 43 seek to allow regulations on local authority functions and reablement to relate to overall care packages to individuals free of charge, and not, as the Bill intends, provision of the personal care element only without charge. I understand the intention of this is to ensure that the financial burdens for those in the highest needs are reduced as far as possible, but this falls outside the scope of this Bill and outside the cost envelope which has been allocated.
	It is fair to say that it is our intention to reform the care and support system so that it is fairer for all in the longer term, and we will be setting out in detail in the White Paper how we intend to do this. However, full care provision through taxation and free of charge at the point of need is something that we know is not sustainable now, or for the longer term, and was ruled out in the Green Paper. That is why we cannot accept Amendments 9, 12, 31 and 43, and ask that they are withdrawn.

Earl Howe: My Lords, I am grateful to the Minister. The reason for tabling amendments omitting the word "personal" was not to widen the scope for delivering free services to those living at home; it was rather to highlight the importance of defining "personal" in a way that did not exclude deafblind people. While I note what she said in relation to the guidance, I am a little doubtful that it will of itself be sufficient because the definition of "personal care" in the draft regulations that the Government have promulgated does not to my mind include the kinds of tasks and activities with which deafblind people typically require help.

Baroness Thornton: As I think I have said to other noble Lords, I regard this Committee stage as feeding into the consideration that will be given to the issue. As the Committee knows, the closing date for consultation on the regulations finishes tomorrow. We will need to look at this discussion and the doubts that the noble Earl has expressed about the regulations.

Earl Howe: My Lords, I very much welcome that assurance. I know that Sense will be very pleased that it will have the opportunity to make its case to the Minister. In the light of her assurances, it is appropriate for me to beg leave to withdraw the amendment.
	Amendment 9 withdrawn.
	Amendment 10 not moved.
	Amendment 11
	 Moved by Lord Lipsey
	11: Clause 1, page 1, line 16, leave out "requiring" and insert "permitting"

Lord Lipsey: My Lords, one thing that has come out very clearly from the debate is the extreme doubt about the cost to local authorities of what is proposed in the Bill. Wide-ranging figures have been suggested but I will not go into that now. Local authorities have asked that if the estimated cost is exceeded the Government should agree to pick up the whole of the bill. It cannot be asking much of the Minister kindly to give them that assurance this evening since it is in accordance with the new burdens doctrine. That led me on to another thought which relates back to a debate we had earlier this afternoon-should we be imposing this scheme on all local authorities at once in one go?
	We have learnt a lot from the Scottish experiment. Some people think that it has worked well, some do not, but we have learnt a lot from it. Would it not be best to try this scheme in a few local authorities as part of a holistic package of addressing the long-term care issue? Should we not try it in a few local authorities, see how the cost works out, and give them incentives from the Government to try it out? We would then be running a kind of pilot experiment, rather than imposing in one great movement a whole package which we would have great trouble untangling should the fears that I and other noble Lords have expressed here and elsewhere prove to be justified. Why are the Government determined on a national scheme?

Baroness Gardner of Parkes: I support the idea of a pilot scheme, but if it is introduced, it is important that it covers widely differing areas. I am told that, for example, in Buckinghamshire, the majority of people meet their own costs and yet, perhaps, in Dagenham, they do not. It is very important that any pilot scheme should cover a wide range of areas, to give an assessment of the different situations that occur.

Baroness Thornton: Amendments 11 and 15 in the names of my noble friends Lord Warner and Lord Lipsey and the noble Baroness, Lady Murphy, focus on the discretion of local authorities in providing personal care at home. Before I come to the specific amendments, some of which are, of course, against the spirit of the Bill's principles, I say to noble Lords that we recognise that, when determining people's care needs, local authorities are best placed to judge what is appropriate in their own situations, depending on their clients and on the availability of services. However, we want to move towards greater consistency of care provision and, as noble Lords know, we will soon have a White Paper.
	We believe-I know that my noble friend Lord Lipsey disagrees with this-that this is a stepping stone towards greater consistency of care provision. The Bill requires all local authorities to offer free personal care at home to those with the highest needs in order to end the postcode lottery which this House has discussed on and off for many years. It will allow councils to have elements of continuing discretion so that they can provide the most appropriate services, which will be dependent on them knowing what works well in their community.
	We think that it is right that the Bill proposes that functions imposed on local authorities relating to eligibility for free provision should include the exercise of that discretion, so that they can effectively manage the provision of free personal care in their area. There will be a need for some cases to be considered in light of other healthcare services being provided to an individual and we have already discussed that.
	There is sometimes confusion about continuing care and what it means. It is care provided over an extended period of time to a person aged 18 or over to meet physical or mental health needs that have arisen as a result of disability, accident or illness. If an individual has primary healthcare needs, NHS continuing care should meet this and the individual's package of care would be provided by the NHS and not by the local authority. It is important to recognise that if an individual needs continuing care to meet needs which do not include a significant health component, this will be provided by the local authority-it is right that they should be able to receive their personal care free of charge, if they qualify for it. It is important that NHS continuing care and free personal care are recognised as different ways of delivering health and social care where the balance between health and care may differ.
	I think that the noble Lord, Lord Lipsey, is trying to seduce us by his proposals of pilot schemes, but I am afraid that he is not going to divert us from our intention in this matter. We oppose Amendment 11, which is a wrecking amendment. It refers to regulations under Section 15 of the Community Care (Delayed Discharges etc.) Act 2003 as having the power to be able to "permit", as opposed to "require", free provision of personal care. However, Section 15 enables the Secretary of State to make regulations requiring-as opposed to permitting-qualifying services to be provided free of charge. This amendment does not change the fundamental nature of the power under Section 15 and therefore the reference to regulations permitting free provision of personal care does not correctly reflect the nature of that power. Therefore, the amendment is not necessary. Local authorities have the power to charge for non-residential community care services but are not obliged to do so. They are therefore already able to provide free personal care if they wish and do not need additional powers to be able to do so.
	Amendment 15 seeks to limit the functions relating to eligibility for free provision of personal care which can be imposed on local authorities in regulations. However, in doing so, it would prevent a very important sub-delegation of powers by removing reference to those functions included in the exercise of discretion. We believe that local authorities are best placed to judge what is appropriate in their own situations, dependent on their specific clients' needs and circumstances and the availability of services. It is therefore right that functions imposed on local authorities relating to eligibility for free provision should include the exercise of discretion, so that they can effectively manage the provision of free personal social care in their area.
	I ask the noble Lord to withdraw his amendment.

Baroness Murphy: I apologise profoundly that I was not here at the beginning of this debate-I was whipping through the previous group. Amendment 15 deals with the exercise of a discretion. Can the Minister tell me whether that refers to the reablement clause? I am not sure, from reading the Bill. My understanding is that the local authority might have a discretion when or not to insist on the reablement. If it does, I am not sure how that might relate, for example, to a stroke patient returning home with profound disabilities, who would probably not reach his maximum potential for several years, but whose carers might feel it was inappropriate to subject to reablement at that point. Can the Minister reassure us about how the discretion could be exercised in relation to reablement?

Baroness Thornton: My understanding on the discretion with regard to reablement is that, indeed, the local authority has the power to use its discretion. We addressed this issue, I think, when I was asked about people receiving palliative care and whether subjecting them to reablement would be appropriate. At that time, as I recall, I said that it would depend. You would not necessarily say that someone who is receiving palliative care should not have reablement, but it may not be appropriate. The local authority would have the discretion to decide whether that was the right course of action. I will write to the noble Baroness in detail if I need to, but my understanding is that this discretion covers reablement.

Baroness Masham of Ilton: Would it cover people with cancer and motor neuron, where reablement might make them worse rather than better?

Baroness Thornton: That is the point-you have to look at each person's issues and problems. With cancer, reablement might be appropriate, because someone might be in remission for a long time, so reablement might be exactly the right thing to offer. On the other hand, it might not be, because the illness is terminal and what is needed is palliative support as an end-of-life strategy.

Baroness Masham of Ilton: That is another example of flexibility.

Baroness Thornton: That is exactly the point, yes.

Lord Lipsey: My Lords, of course I regret my failure to seduce the Minister: I shall bear it with as much equanimity as I can muster. Therefore, I beg leave to withdraw the amendment.
	Amendment 11 withdrawn.
	Amendments 12 to 16 not moved.
	House resumed. Committee to begin again not before 8.19 pm.

CRC Energy Efficiency Scheme Order 2010

CRC Energy Efficiency Scheme Order 2010
	6th Report from the Joint Committee on Statutory Instruments
	9th Report from the Merits Committee

Motion to Approve

Moved By Lord Hunt of Kings Heath
	That the draft Order laid before the House on 19 January be approved.
	Relevant documents:6th Report from the Joint Committee on Statutory Instruments and 9th Report from the Merits Committee.

Lord Hunt of Kings Heath: My Lords, we have before us today the Carbon Reduction Commitment Energy Efficiency Scheme Order 2010. The order makes provisions that will drive forward energy efficiency and emissions reductions in large organisations, and has been developed with significant business and public sector input over the past four years. The order is the first to be laid under powers in the Climate Change Act 2008 that provide for the creation of trading schemes. When this House passed the Climate Change Act, it created a clear framework for the UK's transition to a low-carbon economy and gave us the credibility to take the lead on the international stage. That Act, as well as making provisions for carbon budgets and other measures to reduce our carbon emissions, provides the legislative basis for the order.
	The CRC Energy Efficiency Scheme Order 2010 will encourage participating organisations to reduce their emissions and become more energy efficient. Analysis by the Carbon Trust in 2005 of the large private and public organisation sector found significant potential for cost-effective emissions reductions through energy efficiency. In its analysis, the Carbon Trust found evidence that the introduction of energy efficiency measures was being hampered by at least four obstacles. These are: insufficient financial incentives to reduce emissions; uncertain reputational benefits from demonstrating leadership; split incentives between landlords and tenants; and, finally, organisational inertia. The disappointing rate of implementation of energy efficiency is one of the reasons why my Government have decided to introduce the CRC Energy Efficiency Scheme. The CRC is intended as a catalyst for action and is designed to address these barriers.
	The scheme will cover large public and private sector organisations that produce approximately 10 per cent of the UK's emissions. Private and public sector organisations that have at least one half-hourly meter settled on the half-hourly market and use more than 6,000 megawatt hours of electricity through all their half-hourly meters will qualify for the scheme. As a rule of thumb, organisations that spend more than £500,000 on their energy bills are likely to be covered by the CRC.
	The Government will lead by example. All central government departments will participate, even where they do not meet the qualification threshold. Participants will be required to identify and report annually their electricity, gas or fuel-related emissions. Domestic housing and transport emissions are not included in the scheme. Participants are required to surrender a CRC allowance for every tonne of carbon dioxide emitted as a consequence of their reported energy supplies. These allowances can be bought from the annual government sale or on the secondary market.
	We have created an additional safety valve buy-out mechanism whereby additional allowances can be purchased from the EU ETS if the price of CRC allowances becomes too high. The floor price of the safety valve mechanism is being increased from £12 to £14 per tonne of CO2 to ensure that it is used only as a last resort. This will be provided for in the recently published regulations to be made under the Finance Act, which will be laid before Parliament shortly.
	After each year, the Environment Agency, as the scheme administrator, will publish a league table ranking participants by how effectively they reduced their emissions and became more energy efficient. CRC will be broadly revenue-neutral to the Exchequer: all revenue raised from the annual sale of allowances will be recycled to participants according to how well they perform in the league table.
	The scheme has been designed to overcome the three main barriers to energy efficiency that were identified earlier. The league table overcomes the barrier of unclear reputational incentives. It will provide clear evidence of which organisations are the most energy efficient. The information will be available to investors, to the public and to other companies procuring goods and services. For the first time, energy efficiency will be a reputational issue.
	Another barrier that we have addressed is the split incentive between landlords and tenants. This is a difficult area and we have chosen to assign the responsibility of reducing emissions to the landlord, where they have the contract with the electricity supplier. Landlords are building professionals; tenants are not. Landlords are more knowledgeable about the measures that can be implemented to reduce energy use, and about how to implement them cost-effectively. Furthermore, landlords rather than tenants can have by far the greater impact on the overall energy efficiency of a building. A recent study by the Carbon Trust revealed that landlords have the ability to implement measures that could bring about 80 per cent of available emissions reductions. These arguments convinced us that placing the responsibility on the landlord was the clearest and most effective way to reduce emissions.
	The second major issue that we are tackling is the lack of financial incentives. This is countered by the revenue recycling, which adds an additional incentive on top of savings on energy bills for high performers.
	Another barrier has been organisational inertia. This is addressed by the carbon reduction commitment, which will bring energy efficiency to senior management attention via ranking in the league tables, and through the financial demands inherent in planning both for the CRC and to introduce energy-efficient measures. It is expected that the need to plan and to purchase carbon allowances will gain finance directors' attention in a way that an incremental carbon tax on energy bills would not. The requirement for up-front purchase of allowances each April is intended to make organisations plan rather than deal with the consequences, as currently happens when energy bills are paid. Finally, the fact that an organisation's energy efficiency choices directly impact on how much money will be recycled to them provides a novel financial incentive that is already drawing a lot of attention from potential participants.
	The unique combination of financial and reputational drivers will bring the CRC, and hence energy efficiency, to the attention of boardrooms across the country, and will do so more effectively than any other policy that could have been undertaken.. In many debates on the issue, the need to bring this to the attention of the boards of both public and private sector organisations has been remarked upon. By targeting the CRC to overcome the barriers that have blocked progress in this area for so long, we are confident that by 2020 the CRC will have delivered emissions savings of a considerable amount, and financial savings for participants of around £1 billion per year. It is important to reflect that alongside the potential financial incentives and disincentives for organisations that are part of the CRC, at the end of the day, reducing energy consumption reduces bills overall.
	I assure noble Lords that we have listened carefully to stakeholders during three rounds of consultation, and amended the scheme to improve the focus on energy efficiency and to allow greater flexibility for participants. I commend the order and beg to move.

Earl Attlee: My Lords, I apologise to the House for being a few minutes late into the Chamber. I was surprised when we started at 19.20 rather than 19.30: my comfort zone suddenly evaporated.
	I will be brief, as the crucial points of this important matter will be picked up by my noble friend on the Front Bench.
	The briefing that I am receiving from the UK ports industry suggests that DECC advisers and officials are not listening to them. As a result, the way in which the carbon reduction commitment is applied will have consequences that are unfair and, worse still, counterproductive in terms of maximising the impact of the scheme. Parts of the Minister's speech reinforced that feeling on my part.
	As noble Lords know, shipping is the most carbon-efficient form of mass transportation of goods. Therefore, it is vital that the future measures to reduce carbon dioxide emissions do not compromise the industry's competitiveness with other modes of transport. Furthermore, the ports industry has a very good record on tackling carbon emissions throughout its operations. For example, I am told that, in the first half of 2009 alone, the port of Tilbury reduced its own use of electricity consumption by around 30 per cent, building on reductions achieved in previous years. Tilbury has a public aspiration to become Britain's greenest port. I look forward to visiting the port for the first time shortly.
	I fully support what the Minister said, but I ask that he ensures that he fully understands the intricacies of port estates and their operations. From what he said this evening, I am not convinced that he does. I urge him to take further time to consult and to make the necessary amendments to the CRC scheme, to ensure that the industry and its tenants can fully contribute to the county's efforts to reduce carbon dioxide emissions.

Baroness Scott of Needham Market: I thank the Minister for bringing this important instrument to the House today. My noble friend Lord Teverson, who knows so much about these issues, is unable to be with us this evening. However, we have had a number of discussions about this. I can say at the outset that we on these Benches are very positive about what you are seeking to achieve through this.
	The timing is particularly good for me because last week I was with a Commonwealth Parliamentary Association delegation to Bangladesh. This is a country where the rising sea levels in the south are already leading to mass migration and where melt waters from the Himalayas are causing widespread devastation. Climate change is a reality there that one can see every day and it puts this, and what we are seeking to achieve through this, very much into context.
	I have a few questions for the noble Lord. First, can he confirm that fuel consumption is being calculated for these purposes on an average carbon emission level-in other words, that it is not taking into account how the carbon is generated? It seems rather odd to make no differentiation between organisations that are generating carbon that comes from renewable sources and those that are using coal-fired fuel. Is that the case, and might it be possible to adapt the scheme as we go on to recognise organisations that choose to use more sustainable energy forms?
	Secondly, with the fixing of the carbon price at £12 per tonne, how confidant is the noble Lord that this is sufficiently high to genuinely have an impact on the behaviour of these large organisations-as he described it, the organisational inertia which has bedevilled us? How confident are the Government that there will be sufficient trading of these permits in order to create a viable market? There is certainly some doubt among experts that there will be.
	Finally, even within the highly regulated EU ETS, there have been incidents of fraud and forged permits. Given that this scheme will include thousands of organisations, how confident are the Government about the auditing and management of the scheme?
	We very much support what the Government are seeking to achieve with this instrument.

Baroness Wilcox: My Lords, I thank the Minister for introducing these regulations at last. Any scheme aimed at improving energy efficiency and reducing carbon dioxide emissions must be seriously considered and developed. There is a legitimate role for government in providing business with stable, long-term incentives to invest in energy efficiency and carbon reduction. This order has the potential to be a progressive and effective tool in reducing the carbon emissions from UK business. However, serious questions remain over the development and implementation of the scheme. To ensure the success of this programme it is essential that the process be workable and intelligible throughout.
	The CRC could have been an excellent starting point for a new carbon accountancy scheme, growing out of the inevitable accountancy that the scheme entails. The Government are sticking doggedly to their unambitious timeline for mandatory reporting that we fought so hard against during the passage of the Climate Change Act. Businesses across the UK have voiced concerns at the lengthy and overcomplicated process of consultation and publication that has taken place.
	There have already been delays to the original timeline of this programme. As the April 2010 launch has remained fixed, there are real concerns that businesses will have too little time to comply now that the regulations have finally been published. Has contact been made with UK businesses to reassure them, or to offer them assistance, guidance and support so that UK business may be best equipped to properly comply in time and with the minimum disruptions possible to their business?
	We can see that the burden of bureaucracy falls far beyond the companies which qualify in the regulations before us today. Many more companies will have to submit detailed reports to the scheme. While some of this is clearly necessary to ensure that we capture the right players, adding unnecessary bureaucracy and stress to the already challenging task of running a business, particularly in our current climate, is highly undesirable. What steps has the Minister taken to ensure that this reporting is as straightforward and simple as possible? Will he also assure us that the period of uncertainty for businesses waiting to hear about their qualification status is as short as possible?
	These regulations seem to fall between being sensitive to individual sectors' very different carbon abatement challenges, and being a simple blanket measure. Some sectors captured by the scheme will have a far greater exposure to its costs than others. DECC estimates additional costs of around 9 per cent on energy bills. While some sectors' energy bills amounted to up to 65 per cent of their total OpEx costs, for others this is less than 10 per cent. It is clear that this scheme will squeeze some far harder than others. Has the Minister considered the knock-on effects of these to specific sectors of British business? If not, I urge him to do so.
	There has been a good deal of uncertainty around the inclusion of structured companies. In the last round of consultation the regulations were changed to allow the separate inclusion of certain subsidiaries. Will the Minister explain how the valid and sensible steps to give a level playing field to companies owned through franchise structures and holding companies will not be exploited through restructuring larger firms to avoid involvement in, or fair payments to, the CRC scheme? There has been criticism of this piecemeal approach to considering the specifics of a given sector. We have already heard from my noble friend Lord Attlee-who spoke about it more eloquently than I ever could-about the problems perceived by the UK ports industry. There is very little that I can add to what he has already said. I am sure that the Minister will respond if he can.
	As I said in the beginning, we enthusiastically support any measures to drive energy efficiency, as do the Liberal Democrats. We welcome this order. We hope to see rapid improvements in the processes and details of their implementation. The Government have struggled with this. I am sure that any Government, whoever happened to be in power at the time, would have struggled with bringing this to the table. It is very big, complicated, new and exciting. The bad boys will look for all the loopholes as they always do. One tries one's best to write legislation in a way that gives the honest trader a fair crack of the whip. However, it is not easy. We support this as it stands.

Lord Hunt of Kings Heath: My Lords, I thank both noble Baronesses and the noble Earl for their constructive and helpful responses to the order. It is encouraging that there has been general support, although noble Lords have raised some legitimate issues and concerns which I will do my best to address. I thought that the remarks of the noble Baroness, Lady Scott, about rising sea levels in Bangladesh and the living experience of climate change provided a helpful anecdote for the current debate on the science. Issues have been clearly identified in relation to the Climatic Research Unit at the University of East Anglia and in the Intergovernmental Panel on Climate Change process, but nothing that has occurred seems to undermine the basic science. The evidence is clear that climate change is happening, and if we do not do something about it quickly, we will be bequeathing to future generations what can only be described as catastrophe. Unfortunately it is affecting the people of Bangladesh now.
	Although this is not a debate about Copenhagen, it is worth saying that despite the disappointment about a lack of agreement on a legal treaty, none the less we are seeing with the accord a significant number of countries making their own commitment. We have to build on that and work towards the Conference of the Parties 16 meeting to be held in Mexico at the end of this year. In that context, this order is important because perhaps we have not placed the required emphasis on energy efficiency as a means of reducing emissions. I am convinced that there are huge gains to be made if we can motivate individuals and organisations to take energy efficiency seriously. I take the point made by the noble Baroness, Lady Wilcox, about the complexity of and the time taken to produce the order, but with the league table approach and a system of financial penalties and incentives, we have an opportunity to make serious inroads into a sector which we have found very difficult to encourage to take energy efficiency seriously.
	Perhaps I may start by dealing with the issue of complexity because it is a fair point. Noble Lords very kindly did not comment on the length of the order, but it is not brief and I accept, even though we are talking about large public and private sector organisations which therefore ought to have the capacity to deal with this issue, that there are questions about whether this is too complex a system. I can say that we have consulted fully with the Better Regulation Task Force, which in my experience is not backward in raising issues that have to be dealt with, and I believe that we have gone through all the hoops in that regard. We set out to design a scheme that is as fair and transparent as possible and we engaged extensively with stakeholders to make sure that that was the case.
	I want to come back to the noble Earl, Lord Attlee, on the question of fairness. His essential point was to ask whether the scheme is fair to the port sector. We have tried to ensure fairness across the sectors, and to an extent the complexity of the order arises from the fact that we have therefore had to engage with a range of intricate organisational structures. I know that this contrasts, for example, with the installation-based approach of the EU ETS, but we do not think that that would have been suitable. I also do not think that it would have identified some of the barriers that I have already referred to.
	I want to assure the noble Baroness, Lady Wilcox, that we are committed to keeping the scheme under review, and that we will look to identify any opportunities to simplify it. However, in the light of comments made by both the noble Baroness and the noble Earl, this of course has to be an organic process. The order is a first and we need to learn as we go along. We will review it on a regular basis, and if issues are raised which show that in the building of the edifice of the CRC-if we have missed points out or learn that there are problems as we go along-we will be prepared to make amendments from time to time. That has been the approach taken by my department in relation to a number of the interventions that we have made. I can think, for example, of the introduction of banding in the renewables obligation scheme. That was done very much in response to comments and concerns raised by stakeholders. We will continue in the same way.
	The noble Baroness, Lady Wilcox, referred to the timeline. I probably do not need to go into it, but I am happy to send the timeline to noble Lords if they wish to see it. In brief, the introductory phase is from April 2010 to 2013. The first annual reporting year will start from April this year, the second annual reporting year being 2011 to 2012 and the third from 2012 to 2013, with the first sale of allowances taking place in April 2011. There is always a balance to be struck between wanting to get on with something and wanting to give businesses and public sector organisations time to adjust. I hope that we have got it right and that we can look forward to the introductory year starting in only a few weeks' time.
	Both the noble Earl, Lord Attlee, and the noble Baroness, Lady Wilcox, went on to ask how well we have communicated with the organisations that are going to have to deal with the scheme. We have worked very hard with the Environment Agency, the scheme administrator. In April 2009 the agency held eight regional seminars involving more than 600 delegates. Two further national events are scheduled for this year, to be held this month and in March, and the agency wrote to all potential participants during May and June 2009 to inform them about the scheme. My officials and representatives from the Environment Agency have over the past year hosted around 140 events in order to consult on and raise awareness of the scheme. Lastly, what my speaking note calls "newsblast emails"-whatever that means, but it sounds jolly good-have been distributed to our CRC stakeholder list which comprises more than 16,000 individuals. I think it means that we are highlighting what is taking place. There has been an important effort to get this across. I accept that we need to do more and we will be working with the Environment Agency to do all that we can to ensure that the organisations that will be affected know that the scheme is coming their way.
	I take on board what the noble Earl, Lord Attlee, says about the ports, and I am aware of the concerns that have been expressed. Some noble Lords may have heard from Forth Ports on these issues. One of the concerns is the apparent inability of the ports to influence their tenants' emissions. For instance, I note in a briefing sent out by Forth Ports that,
	"it is worth remembering that electricity on-sales represent a substantial revenue stream".
	I take that to mean that this is a profit centre: the more electricity that tenants use, the more income is generated for the ports. That is a problem, of course, because the CRC is designed as an incentive which seeks to reverse that.
	There are financial and reputational rewards for those who use less energy. I know also that there have been concerns about what might kindly be described as erratic tenants. I would add that there is nothing to stop any port from asking its tenants to take responsibility for their own emissions by connecting directly to the grid. The noble Earl asked whether I would continue to look at the matter. I will continue to do so but, as I said, this is the start of a process. Noble Lords have not raised the issue of schools, for instance, but concerns have also been raised about schools being brought within a local authority's responsibility. I again give the assurance that we will be monitoring the scheme and its introduction very closely. If it proves that we have to make changes, we will want to do so. However, I also want to give certainty to businesses that we are not going to suddenly come in and change it after a few months. We need to see how it works in practice, and give some stability to those organisations as well.
	I turn to the question of price and trading. We have had very happy debates on the EU ETS and issues to do with the carbon price. The noble Baroness is probably aware that because Copenhagen was not all we wanted it to be, the EU has not been able to say that it will go from a 20 per cent to a 30 per cent emission target. We wanted that as it would have had a positive impact on the carbon price, which is low at the moment and is undoubtedly causing some difficulties. Obviously, we do not want that to happen in relation to the allowances on this scheme. I am advised that we think we have got it right, but again, we will have to look at that very carefully.
	On the issue of auditing, my understanding is that we are currently drafting guidance for the Environment Agency on the criteria that equivalent schemes must meet to be recognised as equivalent to the CTS under the early action metric. I take the point the noble Baroness raises: there has to be integrity in the system, and people have to trust the measurement; she is absolutely right. Throughout the whole emission trading sector, the point about clean development mechanisms is that integrity of the measurement system is critical. One of the unnoticed gains from Copenhagen was the agreement in the accord to have, for the first time, a much more vigorous process in relation to measurement. It applies just as much here as it does to wider international trading schemes.
	As for the impact on business, I turn first to the noble Baronesses, and come back to the issue of price and the question of whether there will be sufficient robustness in the system to make businesses want to take this seriously. We think that it is going to work; it is designed to encourage cost-effective emission reductions. The problem has always been that although the amount of savings we think will come through reduced energy demand is £1 billion a year, energy costs in the budget of large organisations can typically be quite low. That is the problem we face: directors of finance going to their boards do not see it as a major expenditure item, yet from our point of view, we have to get across to them that this is serious. In many cases, it takes very little effort for organisations to become more energy efficient. I believe that the combination of the allowances system, the incentives for organisations that do well, and, perhaps in some cases, the league table, will provide the necessary incentives.
	In my opening remarks, I referred to the fact that government departments will be enrolled in this scheme, even though some of them do not reach the thresholds. League tables will have a very powerful impact on government departments themselves. Noble Lords know that my department moved into its offices in Whitehall Place in October 2008-in a building with the lowest rating for energy efficiency that you can have. We took a bit of punishment for this, but we have improved. This shows that external pressure, combined with leadership inside the organisation, can lead to that kind of change.
	I turn to the issue of renewables and why they are not raised here. This is a question I asked my officials too. The noble Baroness is quite right; no differentiation is made in relation to where electricity comes from. The reason is that we are talking about ensuring energy efficiency; that, in essence, is taken as the currency. I suspect that we could have a theological debate about that, but this has been decided in terms of simplicity. That is why you do not get different recognition for renewable, nuclear or, hopefully in the future, carbon capture and storage, or whatever.
	The noble Baroness, Lady Wilcox, asked why we group private equity funds with their investee companies. This raises the whole issue of what the correct governance structure is in these kinds of circumstances. We have taken the decision that grouping organisations in the CRC is determined by whether or not there is a parent-subsidiary relationship as defined in the Companies Act. Where such a relationship exists, we think it is appropriate for the subsidiary company to be grouped under the parent to ensure that accountability is applied at the correct level. The criteria set out in the Companies Act involve a level of influence of parents over their subsidiaries that should be sufficient for private equity funds to encourage their investee companies to become more energy efficient. Private equity funds have an excellent opportunity to use their strategic overview of different companies to facilitate the take-up of best practice, and can use their influence to raise energy efficiency up the corporate agenda. I also think that in deciding to use this approach, we will overcome the problem that the noble Baroness rightfully raised in her opening remarks.
	I am encouraged by the generally positive response to this order tonight. We will be looking very carefully at implementation and at issues that arise when the scheme is introduced. Overall, however, I think that this could be very positive and powerful in ensuring that energy efficiency in this country takes a further leap forward in the next few years.
	Motion agreed.
	Sitting suspended.

Personal Care at Home Bill

Main Bill Page
	Copy of the Bill
	Explanatory Bill

Committee (Continued)

Amendment 17
	 Moved by Lord Best
	17: Clause 1, page 1, line 22, at end insert-
	"( ) not be enacted before 1 April 2011"

Lord Best: My Lords, I have already declared my interest as chair of the Hanover Housing Association, which provides extra-care housing. I must now declare an interest as president of the Local Government Association. I am grateful to the LGA for its briefings on the Bill.
	The first amendment in my name in this group, Amendment 17, and Amendment 44, which is also in the name of the noble Earl, Lord Howe, both raise questions about the real cost of providing care free of charge to people with high needs living at home. Amendment 44 calls for a regular appraisal of the actual expense in place of the unsure estimates that are all we have to go on at present. Amendment 17 seeks to put back the date of commencement of the legislation by six months.
	My motivation for pursuing these amendments comes from the real anxieties felt throughout local government that, first, the Government's "guesstimates" of the costs involved may turn out to be highly inaccurate; secondly, that the financial penalties, possibly in hundreds of millions of pounds if the figures turn out to be underestimates, will be borne entirely by the local authorities, which are already expected to contribute £250 million by making efficiency savings on other spending; and, thirdly, the current planned deadline of 1 October 2010 represents for local authorities an impossible task.
	Let me explain why these fears, expressed very plainly by the LGA, seem likely to prove well founded. However, I preface my remarks with some positive comments about the financial arrangements which the Bill seeks to deliver. It must be a good thing that the Bill has helped to trigger this national debate on paying for personal care for older people and others. In the mid-1990s I organised an inquiry by the Joseph Rowntree Foundation into paying for long-term care. We recommended a national care service, with no boundaries between health and personal care, free at the point of delivery, but paid for by a compulsory national care insurance scheme funded by payments from earnings over one's lifetime alongside national health insurance contributions. We failed at the Joseph Rowntree Foundation in 1996-as did the King's Fund with an excellent financial analysis from Sir Derek Wanless 10 years later-to provoke sufficient debate for this issue to become a central concern for politicians of all parties. The publication of this Bill has helped to bring these issues centre stage and, I hope, will eventually lead to the essential consensus that we need on how the dramatically rising care costs of the future can best be met.
	My second positive comment about the Bill is that its financial framework is built on removing some of the divide between health and social care budgets. The Government intend that this will lead to £420 million moving from the central health budget to the local social care budget. This is just the kind of holistic, joined-up thinking, pooling resources across old boundaries, that will achieve sensible outcomes for those who need personal care at home.
	My third commendation for the Bill is that it should lead to equality of treatment in the assessment of care needs throughout the country, along with, I hope, the portability of that assessment for those who move from one place to another, as proposed by the noble Baroness, Lady Campbell. This approach to assessment of needs should lead to greater fairness all round. However, I believe that these amendments are necessary if local authorities are to be able to carry out the new duties now laid upon them.
	Amendment 44 would make sure that Parliament and the wider public know the real cost of free personal care at home and understand where the cost will fall. They can then decide whether any in-flight corrections are needed to make the arrangements affordable at central and local government levels. The amendment would require the Secretary of State to commission an independent review, initially and then annually, reporting to Parliament on what the measures really cost and what they are likely to cost over the next five years. The amendment calls for the itemisation of any efficiency savings which the Government expect will arise from a reduced use of residential care by people for whom the local authority has to pay. I am not sure how real these savings may be, but if there are savings, the independent review will identify them.
	The noble Earl, Lord Howe, spelt out at Second Reading some of the key concerns of the LGA's members. I want to underline and expand on these points. I fear that the accuracy of the Government's estimate of a £670 million total cost is very much in doubt. The Bill's impact statement says there is "inherent uncertainty" in estimating the costs. It is not known how many people who currently fund their own care at home will come forward and claim the costs of care from the local authority. It is unknown how many people who have gone into residential care and pay their own way will move back to their homes or into new homes or extra-care housing where their care will be free. Statistics are not collected on the number of people who are defined as being in "critical" need of care under the Fair Access to Care Services assessment process. Nor are there figures for the numbers already receiving reablement services or what proportion of those receiving reablement services will need no further help once that reablement exercise is over. Therefore, there are lots of uncertainties.
	The Association of Directors of Adult Social Services reckons that the true cost of offering free personal care to those with high needs could well exceed £1 billion rather than the Government's figure of £670 million. Because the Department of Health has capped its own contribution at £420 million, the balance will all fall on the local authorities. I have noted that local councils are already expected to fund £250 million in very uncertain efficiency savings. For sure, there are few opportunities for any savings within the overstretched social care budgets. Eighty-one per cent of home care is currently provided by the private sector under very competitive contracts. Wages are notoriously low and, consequently, staff turnover can be high and shortages of properly qualified care workers are acute in some areas. Social care has had to be fiercely rationed in many areas, so it is not surprising that local authorities are fearful of the consequences, not only for funding the £250 million allocated to them but also perhaps another £300 million if the Government's estimates of the real cost prove completely wrong.
	Amendment 17 would put back the start date for the implementation of the new arrangements from the Government's planned 1 October 2010 to 1 April 2011. It seems unreasonable to expect local authorities to be fully geared up and ready to go by 1 October when the following points are taken into account. First, a new national assessment tool is to be provided to local authorities in the summer of 2010. This will be essential to them in implementing the Bill's measures, but they might not receive the details until as late as 31 August. There has to be training and the organisation of administrative structures. New IT systems will be needed to record assessments and capture all the necessary data. If guidance came out much earlier than late August, it would be sure to find people away on holiday. All this work will have to be done in a space of perhaps four short weeks. To expect local authorities to handle all the necessary training and organise internal administrative structures in that timescale is simply not realistic.
	Secondly, the Government are also planning to revise their guidance on fair access to care services. Eligibility for free care will depend on that, which, again, will mean new software, with providers having to develop the requisite systems and councils having to procure them. More training will be necessary on top of that already required.
	Thirdly, new staff will need to be recruited to take on the expected extra workload, not least covering the additional reablement services envisaged in the Bill. Fourthly, councils will have to have their budgets set in early March, as they always do, and most are well down that road. The Bill comes very late to reorganise 2010-11 budgets. With local and national elections ahead, it seems unreasonable to expect local authorities to budget for the Bill's provisions for the financial year that is just about to start. Moreover, although costs would start to fall on local authorities on 1 October 2010, the Government's Pre-Budget Report indicates that the savings, if ever they materialise, from reduced expenditure on residential care will not be achieved at the target level of £250 million before 2012-13, which means that a new financial burden will fall on local authorities during 2010-11 and 2011-12. Under the agreed new burdens directive, government are committed to funding fully any such burdens that result from new legislation. That adds another good reason for holding back implementation of the legislation. Amendment 17 would put back the start date to 1 April 2011. I have pleasure in moving it and commending also Amendment 44.

Earl Howe: My Lords, the noble Lord, Lord Best, has succinctly summed up the case. The Government's timetable for implementing the Bill is unrealistic in the extreme; in fact, I am afraid that I go so far as to say that it is grossly irresponsible.
	Local authorities have already set their budgets for the coming financial year, which already include substantial efficiency savings. They are therefore coming at this exercise not only not knowing how they are going to find the money to fund free personal care but completely unprepared for the practical aspects of implementation, as the noble Lord rightly said-never mind having to get used to a new system of assessment, which is a major task in itself. They will have to have enough people on the ground capable of responding to what in some areas will be a tidal wave of applications. In many councils, those trained people on the ground are simply not there.
	We know-and the Government themselves admit-that the costings underpinning this policy are of the weakest kind. They are based almost entirely on assumptions which themselves rest not even on vague data but on no data at all. Even supposing that areas for further efficiency savings can be identified, the Government themselves concede that such savings do not just happen overnight. They happen gradually, over a period of years. Therefore, to expect councils collectively to find £125 million as from October this year, and £250 million per year thereafter, is to place upon them a burden which not even the most well managed of them will be able to sustain.
	Make no mistake, this is a new burden. It defies belief that the Minister can claim that it is not. It would not be a new burden if central government were funding the whole policy, but they are not. Central government have limited their own liability, while at the same time inflicting unlimited liability on to local government. The result of that is likely to be that councils will find themselves making ill thought-through and perhaps arbitrary decisions in order to achieve instant savings.
	These rushed decisions are almost bound to impact adversely upon council residents. We cannot predict in what ways, because that will depend on the budgets that are cut, and/or the new charges that are levied. Even then, councils will still be groping about in the dark prior to 1 October as regards the costs of implementation. London councils have pointed out that if the Government's estimates are incorrect even by 1 per cent in the first year, the additional costs nationwide could amount to another £40 million.
	The Minister knows, without me telling her, that introducing any new policy brings with it upfront costs. It is no different here; upfront costs will be incurred at the precise time when councils are expected to make savings. What estimates have the Government made about the additional manpower resources needed to deliver reablement on the scale envisaged? If no such estimate has been made, do we not owe it-at the very least-to local authorities to think about this in a measured and considered way? The money for reablement is one thing, but you need trained people to deliver it to the right standard of quality. If you do not have that, you are creating false expectations among the public.
	The Royal College of Nursing is very concerned about this, as is the United Kingdom Homecare Association. I have seen some of the responses from local authorities to the department's consultation exercise and a note of panic is detectable in some of them. This is not just on the funding question but also on the issue of manpower resources. Again, I say that it is irresponsible of the Government to take things at this breakneck pace. It is not being straight with the public. There is only one logical way forward, which is to revise the timetable for implementing this Bill and the regulations.
	The Government need to get round a table with local government and to put together a more robust impact assessment based on much more accurate and reliable figures. This can be done. Only then, when proper costings are in place, and everyone agrees that the plans are workable and affordable, should the policy be implemented. Whether the policy can ever be made workable and affordable has to be a matter of doubt but it is certainly neither of those things at the moment. I very much hope that the Minister will take on board the very serious concerns expressed on this issue and be prepared to act accordingly.

Lord Lipsey: My Lords, I shall speak in favour of the two amendments to which I have appended my name, Amendments 38 and 46. The first of these prescribes that regulations under the Bill should be subject to the affirmative resolution procedure, not the negative resolution as now, and the other that there should be a commencement date for the Bill, which again would be subject to the affirmative procedure.
	In moving these amendments, I am delighted to be quite confident that this time the Minister will not be able to say that these are wrecking amendments. They are designed specifically to improve the Bill, and I hope therefore that I shall be more seductive with my arguments on these than I proved to be on the "wreckers".
	I can be pretty brief because the case for the amendments is self-evident. The Bill is the thinnest of skeleton Bills; it does not in itself do anything except remove the limitation on local authorities. All the substance-the flesh, the bones, the blood, the brains-is to come in the regulations, which are of course out for a consultation that closes tomorrow. It is sad indeed that the House has to consider the Bill today when the consultation on the regulations does not even close until tomorrow, and it is a sign of what the noble Lord, Lord Butler, who has participated in this debate, said earlier: that the Bill is being treated as if it were a piece of emergency legislation.
	I see that the noble Lord, Lord Sutherland, is with us, and it is good to see him. It is quite strange, this; for 10 years he and I, with different solutions in mind, have tried to get long-term care up the policy agenda. We took one step forward sometimes, but usually two steps back. Then, suddenly, as a result of the Prime Minister's conference speech, it has become a subject so urgent as to require emergency legislation without any of the safeguards that this Parliament and this country's unwritten constitution usually demand in such cases.
	It is not often that you get a Bill without a commencement date. It is certainly not often that you get a Bill introduced at this haste without a commencement date. It is never the case that you get a Bill introduced at this haste without a commencement date where the timetable is so flimsy-and where, for the reasons that the noble Earl, Lord Howe, set out so well, it is extremely doubtful that the timetable is even attainable.
	There is a further argument for a commencement date, which arose earlier in our debates: there is widespread agreement, although it seems harder to turn this into reality, that we need some form of consensus over this. It is no good producing a Bill to last the four weeks until a general election; we want a Bill that will take us forward in policy in this area not over days, months or even years but over decades, because decades are the time horizon for the Bill's effects. It therefore makes sense for a commencement date to be after a general election. The proposal, which would insert a commencement date to be agreed by affirmative resolution in both Houses, would have that effect. In my judgment, it would not be possible for the Government to get an order of that kind through before an election.
	Our second proposal is that this be subject to the affirmative resolution procedure. Frankly, I am astonished that the Government have tried this one on. The argument is that the regulations that are being amended by the Bill were under the negative resolution procedure, and therefore the Bill should be too. That is rather like saying that a home that was fit for a mouse will of course be appropriate for an elephant. The House is clearly required to look at the amendments in detail in full debate and, if they will, agree them. We talk sometimes about Henry VIII powers. On that sort of scale, Henry VIII was an uxorious monogamist in comparison with the Bill, which is simply unsuitable to be taken under the negative procedure.
	I commend both these amendments to the Committee. I hope that the Minister will accept them today; if not, she may be assured that we will be pursuing them on Report. It will be a much better Bill when we succeed, as I am wholly confident that we will, in inserting both amendments into it at that stage along with other necessary changes.

Lord Butler of Brockwell: My Lords, I support Amendments 38 and 46, particularly Amendment 46, on the grounds that they would both require some further action in Parliament before the Bill came into effect. Indeed, I do not see how the Government could honourably object to having a procedure of this sort. I have criticised the process by which this policy was abruptly adopted and introduced, but I leave that aside. Nobody could listen to the debates today without being aware of the serious concerns among those in the frontline about the incentives that this Bill would introduce, and nobody could be unaware of the controversy about the costs of the Bill and the uncertainty about that. As the noble Lord, Lord Lipsey, has said, the consultation procedure does not even finish until tomorrow.
	There used to be-I hope there still is-an honourable convention that, in the lead-up to a general election, a Government did not take decisions which would commit the next Government to very wide-ranging and possibly irreversible activities. However, when the country is in the economic state that it is, to introduce a policy which, on the Government's own estimate, would cost £670 million a year, the source of which has not been identified, is in my view "worse than irresponsible", to take the expression of the noble Earl, Lord Howe. We have a situation where the Government are arguing that it is too early to start reining back public expenditure to reduce public debt, and that is a big argument in the politics leading up to the general election. It is one thing to say that it is too early to cut back expenditure; it is quite another to force through in the weeks before a general election a policy like this, which would impose on the Government after the election a very large and indeterminate piece of extra expenditure.
	The Government may win the general election. If they do, it will still be in the Government's interests to have had a pause for reflection, to have taken into account the outcome of the consultations and to have considered the regulations which should be brought forward before they bring this Bill into effect. If they lose the general election and the Opposition become the Government, for the Government to have forced through this legislation in advance of the election is, in my belief, in the highest degree irresponsible. I do not speak from a politically partisan point of view when I say that. In political terms, the Government might regard this as a piece of scorched earth; I think, in national terms-and I do not use these words lightly-to force through this legislation, in advance of a general election, and to impose it on an incoming Government would be an act of national sabotage.

Baroness Murphy: My Lords, follow that, as they say. The noble Lord, Lord Lipsey, has three amendments in this group to which I have added my name, but I support all the amendments in this group. They go largely to delay and alter the style of implementation, giving the Government more time to do what they need to do to get this legislation in shape. It is the most important group of amendments that we have debated today. If it were to be accepted, it would allow all of us to feel a little more confident that what the Government want to achieve would eventually be achieved by a consensus between the parties and in the country about what needs to be done on personal care. This would give us a real breathing space, and an honourable one for this Government to accept. I support the amendments in this group and I hope very much that the Government will listen.

Baroness Barker: I will speak to Amendment 47, which stands in my name and is grouped here. In doing so, I thank the noble Baroness, Lady Thornton, for her efforts to ensure that Members of this House had copies of the draft regulations and the consultation paper on draft regulations. There is something fundamental in those documents which led me to table Amendment 47, which asks for there to be a review not within a year of the Bill being implemented, but within six months. The reason for that is that I think noble Lords have overlooked something fundamental. We have made an assumption about the eligibility for this provision; we have assumed that it will make free personal care widely available to many people.
	I am not sure that that is true. It depends entirely on the answer to one question, which I want to put to the Minister. Pages 14 and 15 of the consultation document about the regulations helpfully set out two things side by side. One is the FACS "critical" criteria band; the other is the list of activities in daily living with which people must have problems to be eligible. It is quite clear from the activities of daily living that someone must have problems with four of them. However, in the FACS "critical" band, the wording is not clear. The criteria for the critical band are as follows; I apologise for reading them out briefly. Somebody's needs are deemed to be critical when:
	"Life is, or will be, threatened and/or ... Significant health problems have developed or will develop ... Serious abuse or neglect has occurred or will occur ... There is, or will be, little or no choice and control over vital aspects of the immediate environment ... There is, or will be, an inability to carry out vital personal care or domestic routines ... Vital involvement in work, education or learning cannot or will not be sustained ... Vital social support systems and relationships cannot or will not be sustained and/or ... Vital family and other social roles and responsibilities cannot or will not be undertaken".
	How many of those criteria must a person fulfil to be eligible? This is the curse of the bullet point; it is not clear. It mentions these criteria but says "and/or". Is it two? Let us presume that it is two. Is it three? Is it four? That, in conjunction with somebody having to have problems with four ADLs, means that somebody must be very, very ill and restricted in their ability to live to be eligible for this. That makes a huge difference to all the assumptions that underlie the Bill.
	It could be that in six months' time it is quite evident, after the implementation of the Bill, that the criteria have been drawn so narrowly that it is not delivering personal care to anyone, or to anything like the number that had been assumed. In which case, I assume, the Government would quickly want to rectify that. Equally, in six months, if this legislation is enacted, word may go around like wildfire that free personal care is available, at which point thousands and thousands of people who self-fund present themselves for assessment. In either of those two cases, that means that this legislation would be wrong. Therefore, it seems to me that within six months we can begin to tell whether it is appropriate or not. The critical question that I want to ask the noble Baroness is how many of those criteria does one have to fulfil? From that we can work out what the impact is likely to be both in budgetary terms and the likely impact on social services departments, which the noble Lord, Lord Best, set out so eloquently.

The Lord Bishop of Norwich: My Lords, the financing of this Bill is a puzzle to me but then lots of things to do with finance are a puzzle. As I understand it, the Pre-Budget Report suggested that annual savings of £250 million could be achieved from the reduced costs of residential care by 2012-13-and thus I suppose available to local authorities. However, after implementation on 1 October local councils would be expected to find an additional £250 million a year straight away. Are these two sums unrelated, though strangely the same figure? The submission from the LGAs seemed to me persuasive, as did the speech of the noble Lord, Lord Best, tonight.
	It is intriguing for a bishop that the Government's declared commitment to ensure new burdens falling on local authorities should be fully funded is commonly called the "new burdens doctrine". I fear doctrines are much misunderstood. They are thought to be rigid and inflexible by those who do not understand them. Cardinal Newman, soon to be beatified, wrote a lot about the development of doctrine. I will spare you too much theology. The essential truth remains, in his understanding, that the understanding of doctrine develops and a doctrine gradually discloses more of its truth through history. Thus the doctrine is reshaped as its truth unfolds.
	I wonder what sort of unfolding of the "new burdens doctrine" we are actually witnessing in relation to this Bill. There seems to be a curious flexibility built in about local government financing of the provisions of this Bill, which is not carried across into the very sharp distinctions that are drawn between care at home and care in residential care homes.
	I was much struck by the explanation given by the noble Baroness, Lady Barker, of her amendment. It seems to me what we probably need is both a short-term review, for the very reasons that the noble Baroness, Lady Barker, has explained, as well as much longer-term reviews of what this Bill might lead to. It could well be what the noble Baroness, Lady Barker, has explained will happen. The fear in my part of the world is a rather different one-some of the adult day care centres in Norfolk have been under threat already. They certainly do not care for those in the greatest need, far from it, but as well as specialist services they provide meals, companionship and a life beyond their home for those who would otherwise have very little social engagement at all. Being continuously at home without any social encounter can cause many older people to decline in spirit pretty rapidly and that often leads on to greater physical decline.
	Such unintended consequences of this legislation could be very expensive in a host of ways, not simply financially, but in terms of our social fabric. I noted that the briefing from the Equality and Human Rights Commission, while broadly supportive of the Bill, raised this point about negative trade-offs. What I am sure none of us wants to see is the free provision of personal care for some in great need at home leading to others, with lesser needs, feeling imprisoned in their homes.

Baroness Masham of Ilton: My Lords, having listened to the debate on these amendments, I think that whatever happens, it is most important that vulnerable people and their carers should not have their hopes raised too high by what seems to be an impossible challenge, especially if there are not enough trained personnel to make it happen. It is not just finance that is important; it is also people's hopes, expectations and spirit.

Lord Sutherland of Houndwood: My Lords, I support many of the amendments in this group: Amendments 17, 38, 44, 46 and, with some modification, Amendment 47. The important thing about all these amendments is that they would require further interrogation by both Houses of Parliament on the content of the Bill and on the much wider range of issues in which it is enmeshed.
	I have a specific point on Amendment 44. When something like this is put into place, it is important that we see the outcome in terms of real costs. However, I would also want to add the word "net". We need to look at the net costs of provisions of this kind. The information that I have is that in Wales, for example, the percentage of the cost of providing personal care raised by means-testing is in the region of 14 or 15 per cent. That means that the expenditure is already committed to virtually 85 per cent of actual costs. We need to see what the net cost is in order to properly assess whether savings elsewhere would go some way-perhaps the whole way-towards covering some of these costs.
	I support these amendments because, as I said, there has to be rethinking and constraint, but I would not want to stop the Bill dead in its tracks. Naïve as I am as a Cross-Bencher and in the ways of party politics, I realise that emergency legislation is the flavour of the month before a general election. However, as the noble Lord, Lord Lipsey, indicated, this issue is back on the agenda in a sensible and serious way. The wider community is debating this sensibly regardless of whether we in this House and down the Corridor are doing the same.
	I fear that if the Bill is stopped in its tracks, it will not come back in significant form after an election-whether as a similar Bill or as any other legislation. My fear is that the discussion of these immensely important issues will once again be sent into the long grass because "they are too hard to deal with" or "the problems are too large and the costs would be too great". For various reasons, the latter view is naïve. The costs of pensions in the public sector are too great, but we are not debating those in the same detail. We ought to be looking at this issue and bringing it back. It will not be brought back in any realistic way unless something is put onto the statute book that in the end, to be honest, requires revision. These provisions allow the possibility of such revision.

Baroness Gardner of Parkes: My Lords, the noble Baroness, Lady Masham, raised an important point regarding the personnel available to deal with these issues. They are not available. From both direct personal experience and anecdotal comments from people who have told me of their histories, I have found that in many cases local authorities cannot assess anyone within three months. If that is the case, how will they carry out all these new assessments? Getting people trained for these jobs will be a major issue, not just in terms of expense but in terms of getting them all to a point where they can operate efficiently. I said on Second Reading that the whole Bill is pure electioneering. That is tragic because this is a worthwhile cause which we should all be looking at.
	The points made by the noble Lord, Lord Sutherland, are very interesting, and I appreciate his comments. However, I support the amendments. The whole thing has to be thought out much more thoroughly and local authorities must be sure that they can produce not only the money but the trained staff necessary to carry out the assessments and deliver the care.

Baroness Thornton: My Lords, I am replying to this group of amendments: Amendment 17, in the name of the noble Lord, Lord Best; Amendment 20, in the names of the noble Earl, Lord Howe, and the noble Baroness, Lady Morris; Amendment 38, in the names of the noble Lords, Lord Warner and Lord Lipsey, the noble Earl, Lord Howe, and the noble Baroness, Lady Murphy; Amendment 44, in the names of the noble Lord, Lord Best, and the noble Earl, Lord Howe; Amendment 45, in the names of the noble Lords, Lord Warner and Lord Lipsey, and the noble Baroness, Lady Murphy; Amendment 46, in the names of the noble Lords, Lord Warner and Lord Lipsey, the noble Baroness, Lady Murphy, and the noble Earl, Lord Howe; and Amendment 47, in the name of the noble Baroness, Lady Barker.
	This group seeks to address a number of issues concerning the Bill-the commencement date, the way in which it will be reviewed, and the cost of the Bill. It is right that legitimate concerns are raised about the way the provisions are introduced, the costs and how it will be reviewed. We do not agree that delay is needed or warranted. We have made it clear that we want to introduce the regulations so that they will take effect from 1 October this year and people can benefit from the earliest possible date. I think that it is disappointing that so many councils that have responded to the consultation have so far focussed almost solely on the financial aspects of the scheme-I will return to our view of their figures in a moment-and so little on the practicalities of implementation that we identified in our consultation document.
	These proposals are not brand new or a great surprise to these councils; what we are intending to do was signalled well in advance. Indeed, we are working with them and with other stakeholders on an almost constant, daily basis. We are committed to working very closely with them and supporting them through the process of introducing this. We know that this is a challenge for them, but we think that it is achievable if they start in a timely fashion.
	The Bill has a simple purpose: to bring relief to those disabled adults and older people who have the highest personal care needs. Despite the furore surrounding the Bill, we do not believe that our costs are underestimated. We think that they are a fair cost: £670 million, with £420 million funded from the Department of Health and £250 from local government efficiencies. The estimates of the costs of free personal care at home are derived from analyses by the Personal Social Services Research Unit at the London School of Economics, using its micro-simulation package for older people, with additional analysis by Department of Health analysts. We are confident about the accuracy of these estimates.

Lord Lipsey: May I please interrupt the Minister? It might save the Committee a lot of time if she would agree to publish a full account of those calculations by the PSSRU and the department, so we can all take a view on them.

Baroness Thornton: I will certainly look into ensuring that those calculations are published as far as they can be. I thought that they already had been.
	The ADASS survey, to which less than half of the councils responded, proposed an annual cost of £1 billion rather than £670 million. Your Lordships will not be surprised to learn that we have gone through the figures with the ADASS, and it has conceded not only that it had overestimated the effects of lost income but that it had misread the impact assessment on the likely numbers of younger adults who might be eligible for free care. Our detailed consideration of its survey therefore gives us no reason to believe that the estimates that we originally published were not correct. However, we will be focusing on this and remain committed to our review in 12 to 18 months, after the policy is introduced, rather than providing powers to review it in the Bill.
	I say to my noble friend Lord Lipsey that the PSSRU modelling has already been published. I will ensure that he receives a copy of it. I thought that I had read it somewhere.
	Amendment 17 seeks to delay the introduction of free personal care at home to those with the highest need by delaying the date when the necessary regulations may be enacted. We have been clear from the outset that we intended to introduce the provisions from 1 October. We have already made available a working draft of the regulations which will inform how this scheme is proposed to be delivered, and we intend to publish detailed guidance alongside the national assessment tool for determining eligibility for free personal care in the early summer. We know that this is a challenge for local government but, as I say, it has had plenty of notice of these proposals. It also has a highly trained workforce and the tools which will enable it to implement this if it has the will to do so. We do not believe that there is any need to delay the implementation of the regulations enabled by the Bill in this way, and as such ask the Committee not to support Amendment 17.
	I turn to Amendment 20, in the name of the noble Earl, Lord Howe, and the noble Baroness, Lady Morris. The policy is to provide free personal care and it is right that councils play their part in delivering it. As such, it would be inappropriate to accept this amendment, which would enable the Secretary of State to put a cap on the amount of free personal care which councils can be required to deliver. I am concerned that setting such a limit, giving local authorities the protection of an arbitrary cap on expenditure, might reduce the incentive for them to manage the costs of the policy as effectively as possible. Indeed, the Audit Commission's report Under Pressure, released last week, said:
	"There are huge financial pressures on councils in the years ahead, but redesigning services and exploiting technology can make them better, more efficient and more personal".
	The report found that the longer people can stay at home, the happier they are and the less they cost the taxpayer. Innovative, personalised services mean that older people stay independent longer and save public money in the long run. Members of the Committee have conflated two issues as regards savings. Indeed, savings are to be gained in the long run by keeping people out of homes and independent; there is no question about that. However, those savings will not fund this scheme in the next two years; 4 per cent of local authority spend-which is what local authorities are committed to save through efficiencies-is 4 per cent of almost £100 billion. Therefore, it seems to me that meeting the costs of this scheme within those savings is entirely within the capabilities of local government.
	We cannot accept Amendment 38. The current position under Section 15 of the Community Care (Delayed Discharges etc.) Act 2003 is that regulations made by the Secretary of State are subject to the negative resolution procedure. Despite the impassioned plea from my noble friend on this issue, we listened to what the Delegated Powers and Regulatory Reform Committee had to say about the matter. On 22 January this year, the committee reported:
	"There is nothing in the Bill to which we wish to draw the attention of the House".
	We have made available a working draft of the regulations. If at all possible, we intend to publish the Government's response to the consultation when the Bill reaches its next stage; in other words, at the earliest opportunity. Noble Lords will know that I will keep them informed and make that available as soon as I am able to do so.
	Amendment 44 would require the Secretary of State to commission an independent review of the costs of delivering personal care each year, the estimated costs of delivery in the next five years, the savings made from decreased use of residential care each year and the estimated savings in the next five years. It would require an annual report to Parliament of this information. In the impact assessment for the Bill we have committed to reviewing the implementation of free personal care within the first 12 to 18 months of the policy coming into force. After this review it will be possible to reconsider the predicted costs of delivering free personal care and the conditions for eligibility if necessary. If our costings for the first year prove to be accurate, it would seem to be an unnecessary burden on local authorities to have to produce data to enable the Secretary of State to report to Parliament annually on this matter. Such a report would require a much greater volume of data collection by local authorities than we had envisaged.
	Amendment 45 seeks to delay the commencement of the provisions within the Bill until a review of their affordability has been carried out and reported to Parliament. Such a report would achieve nothing because the Bill's provisions themselves simply concern the enabling powers for regulations on free personal care, not the substantive provisions on free personal care themselves, which would include the circumstances in which free personal care is to be provided. It seems to me that the review at 12 to 18 months would deal with that issue also.
	Amendment 46 is another attempt to delay the coming into force of the Bill and the provision of free personal care to those who need it. The Delegated Powers and Regulatory Reform Committee has examined the memorandum which we sent it and which reflects our views on the appropriate level of parliamentary scrutiny for any secondary legislation that is to be made under Section 15 of the 2003 Act.
	Finally, the answer to the question from the noble Baroness, Lady Barker, is one-one of the criteria of the FACS list which she read out. As for her Amendment 47, which would require an independent review of the costs of delivering free personal care within six months of the Bill coming into force, we think that our 12 to 18 month review will be more meaningful and that we will be able to reconsider the predicted costs and how the scheme is working at that point. We think that six months is too short a period for a meaningful review to be undertaken and I ask her not to press her amendment.

Lord Best: My Lords, I am grateful for the support from all round the Committee for the amendments in my name. There was possibly more robust support for some of the amendments in the names of others. The two parts of the group of amendments are really about the same things: they are about delaying the moment of implementation of this and about reviewing the costs. On Report, we will need to be clear about which parts of these amendments are best taken forward. However, at this stage, I beg leave to withdraw the amendment.
	Amendment 17 withdrawn.
	Amendment 18
	 Moved by Baroness Barker
	18: Clause 1, page 1, line 22, at end insert-
	"( ) specify that the assessment of the person in need of assistance with personal care should not be prejudiced by whether a carer is willing or able to provide care;
	( ) allow for any "qualifying service" to be any service which meets any need of the person who requires assistance with personal care"

Baroness Barker: My Lords, at Second Reading a number of noble Lords talked about the position of carers, the position of carers in relation to assessment of need and the position of carers in relation to their capacity to implement care plans and the way in which those two factors are often confused by local authority staff carrying out assessments of people's eligibility for services. This amendment addresses those two critical issues which determine whether or not many people are deemed eligible for free personal care. The first part of this amendment would ensure that somebody who is in need of personal care is fully and properly assessed and is given a choice over the type of service that they may be given.
	There have been frequent references to Scotland. This is one of the areas on which the noble Lord, Lord Lipsey, and I have more profound differences than we do on many others. The evidence from Scotland-from a Joseph Rowntree Foundation-funded study-is not that carers have abandoned the people they care for; they have not given up caring for their relatives. They have, in a number of cases, changed what they do in order to make sure that life is more bearable for them and for the older people, and I think that that is an entirely right thing to do. This part of the amendment, building on that experience, is absolutely clear that the presence of a carer should not be taken as part of an assumption about somebody's eligibility.
	The second part is about qualifying services. At the heart of the Bill is something that we all know to be fundamentally out of step with the way in which many older people and their relatives now think. Their lives are very different from the lives of people when personal care at home was originally conceived. Many more people now work full-time or part-time.
	The purpose of this part of the amendment is to enable people to be more imaginative in finding services that meet their needs. I was struck by what the noble Baroness, Lady Murphy, said about one particular group of carers: spouses, usually the wives of older men, who do not have any choice about whether they care for their husbands. There is an assumption that they will, even though they might themselves be frail and have a number of health difficulties. Often, those carers can perform personal care tasks but need help with other things to enable them to care for somebody with whom they have spent their lives. Having somebody come and do the washing or the housework once a week enables them to carry on with the task of delivering personal care. Many older people who are cared for do not want personal care to be delivered by a stranger; but in order for that to happen, their carer must be supported.
	The amendment probes the extent to which, first, a carer's existence is not taken into account as part of the assessment of eligibility; and, secondly, how imaginative and free local authorities can be, working in partnership with service users and carers, in understanding the context in which personal care happens, and what the service needs may be, even though that service need may not be personal care itself but something that allows personal care to be delivered by somebody else. I beg to move.

Baroness Pitkeathley: My Lords, there is no doubt that most families want to provide care for their elderly and disabled relatives, and there is no sign of that willingness diminishing. As the noble Baroness, Lady Barker, rightly said, there has been no sign in Scotland of carers abandoning their relatives because free personal care is available. However, it is important that we do not wrongly assume that family members are willing and able to provide care; or that the care would be sustainable if it were imposed on family members at a particular time. If you do that, you will often force families to give up work, putting at risk their own health and their financial future. Therefore, you will possibly end up with more people being a charge on the state, or needing residential care or home care, than would otherwise be the case.
	Some local authorities' self-assessment forms for disabled people ask whether any of their care is being provided by a family member or friend. So far so good; but they then do not include a provision to check with that person whether they are willing or able to provide the care. I remind noble Lords that that goes against current legislation such as the Carers (Recognition and Services) Act and the Carers and Disabled Children Act. It also raises issues under the Human Rights Act. I seek an assurance from the Minister that she agrees that we should always remember that caring takes place within an existing relationship, and that the nature, history and quality of that relationship should always be taken into account before any assumptions are made about a family's willingness to care.

Earl Howe: My Lords, Amendments 22 and 41 in my name are grouped here. I echo a great deal of what the noble Baroness, Lady Barker, said. I also take fully on board the points made by the noble Baroness, Lady Pitkeathley. However, the amendment of the noble Baroness, Lady Barker, is not quite right because it is ambiguous. Before a person can be deemed eligible to receive free personal care at home there are three assessments which he or she must undergo. The first is an initial assessment that will usually be the precursor to a course of intensive reablement. The second is a community care assessment designed to identify the range of the person's needs and what level of banding they fall into under the FACS definitions. The outcome of that assessment will in part be influenced by the result of the reablement exercise. Anyone placed in the highest FACS banding, "critical", would be assessed on the number of activities of daily living for which they required personal care to be delivered to them by social services.
	In practice, as I understand it, the second and third assessment legs will often be rolled into one. However, for decision-making purposes they are quite separate. The single assessment tool which the Government are bringing forward will be designed to inject national consistency into the assessment of need-in other words, whether a person's needs are critical, substantial, moderate or low. It will not be able to take account of the particular living conditions in which the person finds himself.
	To take a simple example, a man whose needs are assessed as critical may need help with four activities of daily living if he is living in a house with stairs. If he then moves to a bungalow his needs will remain critical under the national assessment process but he may only require assistance with three ADLs. This means that complete portability of benefits, which, in the abstract, many of us are keen on, cannot be delivered because it will always be necessary to assess someone by reference to their actual living conditions. So the noble Baroness's amendment is flawed because it fails to draw a distinction between the single assessment to be carried out under national criteria and the assessment of eligibility for personal care which depends on the person's individual circumstances and is a matter for the local authority concerned.
	The question is whether the presence or absence of a carer should have any relevance in the various processes of assessment. My own view-and I hope the Minister will confirm this-is that in the assessment of a person's overall level of need, which is what the national assessment tool will be used for, the presence or otherwise of a carer has no relevance or bearing whatever. The level of someone's need is their level of need. However, when it comes to that person's entitlement to personal care, whether free or paid for, it could well be that the presence of an unpaid carer affects the person's eligibility for some elements of personal care.
	For instance, if an unpaid carer were able and willing to supervise a person taking their prescribed medicines at certain times of day and the person himself was happy with that, there is no good reason for social services to assume responsibility for this task. So when deciding on someone's eligibility to receive free personal care it is not unreasonable to take account of any assistance which can readily be provided by an unpaid carer. On the other hand, we do not want to see situations arising in which unpaid carers are unfairly exploited. Local authorities should not be able to impose unreasonable demands on carers as a way of avoiding their legal obligations to provide personal care. After all-and the noble Baroness, Lady Barker, effectively made this point-it is often when carers feel that they can no longer cope with looking after somebody on their own that local authorities are requested to provide help.
	To what extent are would-be service-users entitled to insist that their eligibility to receive personal care in the home should take no account of whether a carer is willing and able to provide help with activities of daily living? This seems to be quite a difficult question because, if, as I believe, there is a difference between reasonably relying on a carer and unreasonable exploitation of that same carer, there is at the same time no obvious or easy way of making that distinction clear in regulations or guidance.

Baroness Thornton: I take this opportunity to recognise the key role played by carers in supporting family networks with health and social care needs. The National Carers Strategy includes a 10-year vision for carers, a commitment to move carers' issues to the "centre of family policy", and to reflect this by promoting the concept of whole family care planning following separate assessment. Undertaking effective carers' assessments is a key part of making this a reality. But while we will continue to rely on carers to contribute to the wider package of care, we do not want to place unreasonable caring burdens on them.
	The planned White Paper is addressing longer-term issues, and it may have future implications for the way that social care is delivered. However, given that any fundamental system reform is unlikely to take place for some time, we have recently consulted on revised FACS guidance which will be published shortly in recognition that more immediate action can be taken to improve the current system. Compared with the previous guidance, the new FACS guidance will address the key role that carers can play in meeting people's care needs and how their needs can be addressed at the same time if they are to continue in their caring role. In determining an individual's eligibility for care, account will be taken of the input that the carer is able and willing to make. In that sense, it will not be "carer blind", nor should it be, but this will help to establish whether someone is in the highest band for help with social care-FACS critical. For those with critical needs, the assessment for personal care will be based on activities of daily living and that will be carer blind, focusing only on what the individual themselves can or cannot do. That might be the opposite way around from how it was related by the noble Earl. I think I will check on that, but the Box tells me that that is what this says. A practice guide and online learning tools for FACS are being developed by the Social Care Institute for Excellence to help frontline staff and their managers apply the criteria in a more consistent way. These will be available in early April.
	In relation to Amendment 18, I wish to stress that it is important that we properly reflect the role of carers, as outlined by my noble friend Lady Pitkeathley. At this point, I wish to pay tribute to the work that unpaid carers are doing up and down the country day in and day out. It is also important, as the noble Baroness, Lady Barker, pointed out, that we make sure when undertaking assessments that the role of a carer is not taken into account inappropriately. So, for example, when undertaking assessments, professionals should seek to establish whether a person can carry out a particular task such as washing or bathing, and that they are assessed on their own ability to do that, not the ability of the carer to assist them. Taking into account a carer's role to a greater extent could inadvertently affect the outcome of the assessment for eligibility for free personal care. However, while I recognise the sentiment expressed in this amendment, we are committed to addressing this issue in statutory guidance. I therefore do not consider it necessary to have this on the face of the Bill, although clearly we will need to discuss the issue further as the guidance unfolds.
	I turn to the point raised by the noble Baroness about "qualifying services". Section 15 defines qualifying services as a range of services provided under community care legislation. This amendment would seek to extend the range of services provided free to any services needed by a person in receipt of personal care, not just services to meet their personal care needs. This would be uncertain and beyond the policy, which is limited to personal care for those in the highest need.
	Amendment 22 aims to ensure that regulations may specify the extent to which a carer's practical assistance can be taken into account when determining an individual's eligibility for free personal care. We will be setting out the assessment process for deciding whether or not an individual is eligible for free personal care in statutory guidance and, as I have said, we will also be providing local authorities with a national assessment tool to help them make this judgment. The revised FACS guidance sets out how local authorities should take into account the practical support of a carer when they are carrying out a community care assessment and judging which FACS band an individual sits within, based on their level of risk. The additional assessment of personal care needs which will determine eligibility based on requiring significant help or prompting to carry out four or more of the activities of daily living will, as I have already said, be carer blind.
	Finally, I note that Amendment 41 is consequential on the other amendments tabled by the noble Earl, Lord Howe, and the noble Baroness, Lady Morris of Bolton, which use the term "carer", and is only necessary if these amendments are passed. In itself, the proposed definition of "carer"-that which is set out in the Carers and Disabled Children Act 2000-is unobjectionable. However, since those amendments to which Amendment 41 is consequential are being resisted, this amendment should also be resisted; I ask the noble Earl to withdraw it.

Earl Howe: My Lords, before the noble Baroness, Lady Barker, decides what to do with her amendment, may I ask the Minister whether she and her officials can spare me some time between now and Report stage? It is quite clear that I have come at this subject from a completely different angle from the Minister. I may have done so with less than credible logic on my side, but I am slightly surprised by the answer she has given, even though I am very grateful for it. It is clear that the Government have done a great deal of thinking about this, and I probably need to be briefed on that thinking.

Baroness Thornton: I am happy to do that. Having worked opposite the noble Earl for the past two years, I think it is worth us having a discussion about how we have got completely different views on how this works.

Baroness Barker: I thank the noble Baroness for her characteristically comprehensive and thorough response to the amendments tabled by myself and the noble Earl. It would be extremely helpful if there was a briefing for all Peers on this matter. This is a critical element to the whole of this Bill, and the place of carers is critical to the whole of social care. If there is confusion about this here and now, it needs to be clarified. Believe me, by the time it works its way down to the frontline of a social services department for an assessment, there will be major confusion, and people will lose out on entitlements which to them are quite often the difference between managing and not managing, and getting by with dignity. I am very grateful to the noble Baroness, but it would be helpful if she would clarify this matter for everybody concerned. I beg leave to withdraw the amendment.
	Amendment 18 withdrawn.
	Amendment 19
	 Moved by Earl Howe
	19: Clause 1, page 1, line 22, at end insert-
	"( ) specify the meaning of "personal care" for the purposes of this section"

Earl Howe: My Lords, Amendment 19 is intended as a means of raising a series of questions to the Minister about the kind of personal care which will and will not be covered by the free care at home policy.
	It is often the way in politics that Governments receive no thanks at all for the good things they do. Here, I think we have on our hands the potential for good intentions to bounce back in Ministers' faces. The way the Government are setting up this scheme is, I am afraid, bound to lead to disappointed expectations on quite a large scale. They have led the public to think that people who have been through a reablement process, and whose needs are assessed as critical, will be eligible to receive free personal care at home-we know that is not so. Free care will only be available to those in critical need who require significant assistance with four or more activities of daily living. So then, is it correct that someone whose needs are critical and who requires significant assistance with four or more activities of daily living will be eligible for free personal care in the home? They may but, on the other hand, they may not, and that is because in the regulations to be laid under the Bill personal care and activities of daily living will be carefully defined in ways which exclude a whole range of important personal care activities. For example, cleaning, laundry and driving someone to the doctor are services for which a charge will continue to be made. To some people that will not come as a welcome piece of news; to others it will simply be confusing.
	The issue of potential public disappointment and discontent is wider than this because, whenever lines in the sand are drawn and definitions set in stone, someone will always end up on the wrong side of one or other of them. The difference between someone having care needs that are substantial and care needs that are critical is often quite small. The difference between needing help with an activity of daily living and needing significant help with that activity can be equally tenuous and is often quite subjective. What is meant by "significant"? It could be a significant amount of help or it could be help which achieves a significant result. Neither the regulations nor the current guidance provide clear and simple answers to these key questions of eligibility.
	The scope for disputes between local authorities and service users will be much greater than it is at the moment because much more will be at stake. A lawyer who deals in this field of the law said to me that he knew solicitors who were rubbing their hands in anticipation of dealing with the litigation that lies ahead. Let me make clear that I repeat that remark with no relish whatever. Disputes and litigation will be a tremendous distraction for all concerned, other than the lawyers, and a waste of resources. However, it looks like coming about because the Government have rushed at this policy and have not allowed themselves and everyone else to make sure that it is deliverable without unintended adverse consequences.
	The Equality and Human Rights Commission and a number of other organisations have questioned the definition of personal care contained in the draft regulations. They have pointed out that the categories of personal care listed do not dovetail with the six categories of activities of daily living. For instance, the definition of personal care makes no reference to helping people with mobility problems, or managing and monitoring medication, or basic food preparation, even though these things feature in the activities of daily living. What is the reason for that mismatch? Should not the draft regulations be clearer about what is intended? I beg to move.

Lord Best: My Lords, I speak to Amendment 32 in this group, which might be called the housing amendment as that is what it covers. Alongside social care and health, housing represents the equally important third leg of the stool; without the housing leg the stool falls over. It is no good assessing an individual's personal care needs and switching funds from health to pay for personal care if the critical problem is the unsuitability of that person's home. You cannot discharge someone from hospital safely if the fall that they are recovering from is likely to recur when they get back to the unsafe premises that they came from: if they cannot get up the front steps; if they cannot get upstairs to the bathroom; if they need assistance in the home; if it is freezing cold. These are all ways in which the property may make someone a prisoner within it or debar someone from living there and force them into residential care.
	This amendment calls first for an assessment of the individual's eligibility for free care to have alongside it an assessment of the suitability of the home for that individual to receive their personal care. This would do the joining-up which the noble Baroness, Lady Andrews, as Minister, did so helpfully in the government report, Lifetime Homes, Lifetime Neighbourhoods: A National Strategy for Housing in an Ageing Society. It also builds on the new report from the audit commission, Under Pressure, which explains that money is extremely well spent on the home in preventing people from requiring more care or a move into a residential establishment.
	We may well argue that it is the extra-care housing that the noble Baroness, Lady Gardner, referred to earlier that is the ideal, or retirement villages and retirement communities, but these will serve only a very small minority of people. For the great majority, it will be aids and adaptations to their existing accommodation that will mean that care can be provided safely, sensibly and happily within the home.
	Perhaps I could just take a moment to give your Lordships an illustration from my own life, as I suspect that a lot of other people will have similar stories surrounding their lives as well. After Christmas, I had an elderly relative move into residential care. She was not actually receiving any formal care and was getting very little informal care in her own home, being a fiercely independent woman, but it was the house that drove her out and required her to move into expensive residential care. It was just unsuitable. It was a cold house and one with steps in every possible direction-upstairs, downstairs and all around. She is suffering from quite severe arthritis, finding it extremely difficult to get around and to turn the taps. There are no grab rails on the walls. I could see the expenditure that might do the trick, but it is too late as she has gone into residential care. The real problem that she faced was a housing problem, even though she now finds herself in an institution, receiving expensive care. I think this joining-up of housing with health and social care is an underlying principle that this piece of legislation with its words "personal care at home" should embrace.
	I recognise that this is something of a probing amendment. I would argue for more funding for the disabled facilities grant programme, which is very underfunded, and more resources for the home improvement agencies, such as Care and Repair. Money can be so well spent in housing in its relationship to care within the measures enshrined in this legislation. I understand that it is in the reablement section that one finds the opportunity for some funds for aids and adaptations to people's homes, including telecare censors and alarm systems that can alert care providers elsewhere. However, on looking at the numbers, I note that the funding for reablement at £130 million for 130,000 people at £1,000 per head, based on 30 hours at £30 per hour with £100 to spare for little extras, does not leave any room for the aids and adaptations that one would hope to see as part of a package providing the support that older people are going to need.

Baroness Greengross: I rise to speak to Amendment 33. I want to speak particularly about people suffering from dementia. There is quite a concern that many people with dementia will not meet the four ADLs or the critical criteria for an inability to carry out vital personal care or domestic routines, as described, despite having a substantial level of need. That is obvious when one thinks about the symptoms of dementia in its various forms. Your Lordships will recognise that one of the key reasons for this is that many people with dementia find that they can carry out some personal care routines with various degrees of difficulty, but only when they are prompted by care staff or carers. Providing personal care to someone with dementia is often very different from providing care for a frail older person, because the person with dementia can easily become confused and distressed and very often resists the essential care that he or she needs.
	Careful prompting and supervision play a critical role in the care of many such people. There are all sorts of things that they can do-they are very simple things when you are well-such as swallowing medication, chewing properly, preparing food for themselves, washing properly, and dealing with and maintaining continence, if they are carefully prompted by trained people. The amendment would ensure that dementia is recognised as the illness that it is. It is essential that it is inserted. I hope that the Government take it seriously, so that the supervision and prompting that are necessary can be provided.

Baroness Barker: I shall speak to Amendments 37 and 42, which stand in my name. I am pleased, as always, to follow the noble Baroness, Lady Greengross. It is fitting that I, too, want to talk about people with dementia and the importance of having staff who are trained and who understand the nature of dementia in the delivery of services.
	I used to have an office whose window looked across the street. Twice a week, a little van would turn up from social services. A lady would get out and ring the door of a house that was divided into flats. She would wait for quite a while while the gentleman inside came to answer. All the time, she would continue to talk to the driver of the van. When the gentleman came to the door, she would hand him his package of dinner while continuing to talk to the driver. She would then turn around and walk away. That gentleman had dementia. She did not even know whether he ate that dinner, fed it to his dog or threw it in the bin. She had no idea of what his life was like inside his house. It was the absolute epitome of a service being delivered so badly and so wrongly for somebody who had dementia. I would hope that that sort of thing would not be so common these days, but who knows? Hard-pressed staff might find themselves in a similar position.
	I wanted to table the amendment because it is important that we remind ourselves that we are talking in this Bill about two very distinct groups of people. There are adults with disabilities who for the most part will have conditions which are life-long and stable. Their needs may change, but probably not much over time. We are talking also about older people whose conditions can change quite rapidly, and older people whose conditions might be limiting and long-term, and change gradually. Their needs are very different. I hesitate to say it in front of the noble Baroness, Lady Murphy, but, in lay terms, the needs of people with dementia can change. The noble Earl, Lord Howe, was absolutely right: the distinction between substantial need and critical need is very difficult to determine, particularly when people have fluctuating needs.
	When speaking to an earlier group of amendments, I asked the Minister how many of the FACS-critical criteria one would have to meet. Those criteria include:
	""Life is, or will be, threatened".
	That is a comparatively easy thing for a member of staff or an assessor to find out. However, there is also the criterion that:
	"There is, or will be, an inability to carry out vital personal care or domestic routines".
	Is that so clear and easy to determine, and are the consequences of it so great? Therefore, I tabled this amendment and Amendment 42, which is similar to that of the noble Earl, Lord Howe, to determine exactly what is meant by personal care. There is, as noble Lords are aware, no definition of personal care in primary legislation in England. As several noble Lords have already spotted, the definition in this amendment is the definition in the Scottish legislation from the Community Care and Health (Scotland) Act 2002, as amended in 2009. The significant amendment in 2009 was the consideration of the preparation of food. When looking at an amendment such as this, it is perhaps very easy to dismiss as insignificant each individual sub-clause of each individual part. However, in terms of the life of a person who is likely to be eligible for free personal care-and for their carers-each and every one of these small things is an extremely important part of life.
	The Government have always resisted having a definition of personal care in primary legislation, and I am sure that they will do so now. I would be staggered if they did not. However, one of the excuses that they have always run in the past is that putting a definition into primary legislation would by its very nature be exclusive and would probably be unworkable. In Scotland, however, that has proven not to be the case; it has proven that the lawyers, sadly, have not made that much money from bringing cases to contend what is meant by an unclear definition.
	I also wish to echo the points made by the noble Earl, Lord Howe, that the definitions proposed in the Bill and in the regulations do not equate to the six basic categories of activities of daily living. That is pretty well bound to cause confusion, if one is not being too generous.
	As I did at Second Reading, I echo the point made by the noble Earl, Lord Howe. Help with the provision of medication is a critical part of life for these people, and it therefore seems to me that it is a major omission. The prompting and supervision of people who have dementia to do some of the personal care tasks of which they are capable but which they cannot do if they are not prompted seems to me to be a critical part of this. I echo the point made by the noble Baroness, Lady Greengross, that prompting somebody to do that must be one of the areas of personal care.

Baroness Gardner of Parkes: My Lords, I strongly support Amendments 32, 33, 37 and 42. I was very interested in the comments of the noble Baroness, Lady Greengross, who knows so much about dementia; her remarks were very sad. Amendment 37, tabled the noble Baroness, Lady Barker, also deals with dementia. It is important that there should be special provision for dementia, because there has to be recognition that people suffering from dementia have different requirements.
	I like the way in which Amendment 42, tabled by the noble Baroness, set out a great catalogue of things-that is practical. I am not sure, however-I am only speaking from my past experience of Bills in this House-about that approach. Usually, when someone sets out a provision listing everything that one could possibly think of, someone else says "Oh no, you should not make it like that, because there will be other things that you have not thought of, so you should put it in some other way to cover that". Moreover, there should perhaps be a code of practice or something like that, which would include all of those things-this might not be completely appropriate even for a schedule. However, it is right that people should view those topics that she has listed there.
	Having made those comments, though, I want to say that I really stood to support the noble Lord, Lord Best, on the provision of appliances and adaptations in a home. I repeat my comments from Second Reading: it is important that if a home is completely unsuitable and cannot be adapted in the way that he described for that elderly relative of his, then other housing should be available. Going right back to my social services days on the council, we were aware that housing, health and social services must be linked-a point that has been made now-and until they were linked it was pretty hopeless trying to run any of them, because each was affected by the others. I strongly support the point that has been made about linkage.
	The housing issue is wider than just this Bill. I read in this morning's paper of some family that has lived in a tiny flat for 12 years waiting for a house-or it might have been five years, with an estimated wait of 12 years. Many people are looking for more space, and it should be possible to provide the ideal space for older people in great need in order to free up some of this other space, particularly in terms of social housing, where large properties are often occupied. People cannot be forced out of their houses but they should be persuaded that there is merit in the idea of leaving. If an attractive alternative were available that was better in health terms, I think that they would be willing to accept that.
	The noble Lord's relation opted for a home simply because that was the only thing available. I am sure that if she had had the offer of a small self-contained warden-covered area, she would have been very happy to accept that. As I have said, in other countries, and to a certain extent in this country, people can buy units of special housing in the same way that, when they vacate them, the units must go on to someone else in special need.
	These are interesting amendments so, although they have come up so late in the day, I felt that I had to say something about them.

Baroness Murphy: I strongly support the amendment of the noble Lord, Lord Best. He is right about the importance of the built environment in order to support people receiving appropriate care.
	The other amendments all go to the difficulties of the definition of the problem and how it relates particularly to people suffering from mental health problems in addition to physical health problems. Activities of daily living were originally used to assess people's physical states.
	It is not just dementia; dementia is merely the commonest and most obvious condition. Take, for example, an older person with a depressive illness or a paranoid disorder who is not eating or drinking without help because of ongoing delusional beliefs about food-or, even commoner, a person with cerebrovascular disease who apparently has nothing wrong with them at all but sits all day and does nothing as the result of profound motivational difficulties that are of cerebrovascular origin. The latter is a remarkably common complaint from families: "Me mum seems all right but she doesn't actually do anything, doctor", is how it is usually described.
	It is a devil of a job sometimes to get this right. I refer to attendance allowance because that has been one of the great banes of the help that people have had available to them. I worry that we will have a rigid interpretation in the guidance that will make it easy to tick boxes and do the assessment, but will not be sensitive enough. So much will depend upon it. If we are going to have a dividing line between three ADLs, four ADLs and five ADLS, we have to be sure that this is a sensitive way of assessing people and that people have clear guidance. Personally, I think it will be a nightmare to make decisions of this nature. We should have some sort of definition in the Bill, and I support the amendment of the noble Baroness, Lady Barker, and the amendments of the noble Baroness, Lady Greengross, and her intention to get some support for people with more difficult assessment problems.

Baroness Wilkins: My Lords, I will be brief. I strongly support Amendment 32, in the name of the noble Lord, Lord Best, which would ensure that home adaptations are effectively integrated into the new free personal care arrangements.
	As the Government made clear in their excellent strategy report, Lifetime Homes, Lifetime Neighbourhoods, housing adaptations are an essential component of the triangle of support, with heath and social care, in enabling people to remain living independently in their own homes, a point that has been made by a number of noble Lords. Many noble Lords will have had the experience of breaking their leg or their ankle and finding how difficult it suddenly becomes to do the basic essentials of washing and going to the loo because of the flight of stairs that they hardly ever noticed going up and down each day. Sadly, many noble Lords will have had the experience of finding that the home they have lived in happily for many years with their partner suddenly becomes the major barrier in helping them to care for that partner, when they become seriously ill.
	By chance, this Committee falls on the day that will no doubt always remain a significant anniversary in my life, as it was 44 years ago today that I fell off a carnival float and broke my neck. If my parents' home had not been adapted to provide a bathroom and a bedroom downstairs, the amount of personal care which I would have needed would have been considerable, and would then have been a continuing and recurring cost. The ODI report of 2007, Better Outcomes, Lower Costs, by the University of Bristol, reviewed the evidence of the implications for heath and social care budgets of investment in housing adaptations. It set out a wide range of evidence and states:
	"Adaptations that remove or reduce the need for daily visits pay for themselves in a time-span ranging from a few months to three years and then produce annual savings. In the cases reviewed, annual savings varied from £1,200 to £29,000 a year".
	Housing adaptations need to be an essential part of this Bill and I very much hope the Minister will accept this amendment.

Lord Sutherland of Houndwood: My Lords, I want to support the probing in relation to housing and dementia. I will say no more about it, other than that I hope it will continue.
	I will comment briefly, I promise, on Amendment 42. I admire the thoroughness with which the noble Baroness, Lady Barker, conducts herself in proceedings such as this, but I wonder if she has perhaps gone a step too far in this amendment. Despite the fine provenance that she quotes for much of the material, there will inevitably be gaps-for example, there is no mention of insulin injections, which some would regard as fundamental. I do not want to see that added to the list; I am just making the point that there will always be gaps if you make a list. I would prefer a series of general points that have to be covered.

Baroness Thornton: My Lords, I will reply to the group which comprises Amendments 19, 32, 33, 37 and 42. I have taken out about two-thirds of my notes because I am conscious of the time, so if I seem a bit truncated that is because I am.
	I start by saying that the proposals in this Bill are for England and are not the same as they are in Scotland. In Scotland they offer a much different system, which is about the provision of full care free of charge, not personal care, as we are proposing, which is a much more targeted approach.
	The Government entirely agree that a range of services and support needs to be available to help people to maintain their independence and, crucially, to help prevent their care needs from increasing. We know, for instance, that an older person who is losing some of their mobility, but is otherwise capable of looking after themselves, can be helped by the provision of home adaptations to continue living independently in their own home.
	As well as these sorts of adaptations, early intervention and support services, such as balance training to help someone recovering from a fall, are known to be a worthwhile investment which both helps people to get back on their feet and continue living independently, and saves money in terms of preventing admissions or readmissions to hospital or residential care.
	We know that prevention and early intervention are not only good for people but make absolute economic sense. However, we are not starting from scratch. The Government have been promoting and supporting this approach in a variety of ways. In the Putting People First programme we defined prevention as one of the essential elements of what a transformed social care service for adults would look like. We have given local authorities more than £500 million to support that transformation and, all around the country, have been developing preventive services to support people's independence. Where this involves adaptations to the home, it is often done in partnership with housing providers, who can draw on disabled facilities grants. The allocations for 2010-11 will be announced shortly. We have also specifically promoted the development of telecare and other technologies through the £80 million preventive technologies grant made some years ago. On top of this, the Bill offers further support for reablement services, which include home adaptations and technologies. We are not just talking about the amount of money allocated by the activities of this Bill, but about building on other resources which are already available for adaptations to people's homes.
	Amendment 19, moved by the noble Earl, Lord Howe, seeks to insert a power for the definition of personal care to be included in the regulations. Of course, the noble Earl is right: it is necessary that we clarify our definition of personal care but it is not necessary to do so in the Bill. The definition is in the working draft, which reflects our current thinking. It may be subject to change following the close of the stakeholder consultation tomorrow and our review of the responses. I ask the noble Earl to withdraw his amendment on the basis that we will include a definition of personal care in regulations, as indicated in the current working draft.
	Amendment 32, tabled by the noble Lord, Lord Best, raises several different issues. The first part of the amendment would require regulations to give local authorities the power to assess the suitability of an individual's home for independent living where they have been determined to be eligible to receive free personal care at home. Clearly, it is important that, while many people wish to stay in their homes for as long as possible, they should not be living in an inappropriate setting. We would expect councils to look at the impact that suitable alternative housing or adaptation would have on helping to keep people in their homes. We completely agree with the noble Lord about both the importance of housing and the necessity of including it in the assessment. We would expect local authorities to check whether there are any needs that could be helped by aids and adaptations or additional services when they carry out their community care assessment. That is one of the reasons why we include reablement in these proposals-to encourage councils to think more broadly about the type and range of support that they should provide. The second part of the amendment refers to the need for personal care to include the provision of aids and adaptations. I think I mentioned our view on this in my previous remarks on this amendment. We agree with the noble Lord.
	I turn now to Amendment 33. In the draft regulations, which we have made available to Peers, we have set out the eligibility criteria which we propose will determine who has the highest care needs and will qualify for free personal care. Our proposals require that, to be counted as having the highest needs, a person must first be within the Fair Access to Care "critical" band, and-as we have proposed and already discussed-need significant help when prompted to carry out four or more activities of daily living. The noble Baroness, Lady Greengross, is rightly concerned that any assessment of a person's ability to carry out activities of daily living should be able to capture whether they have difficulty because they need prompting in addition to any physical difficulty that they have. I reassure the noble Baroness and the noble Baroness, Lady Barker, who voiced their concerns on this matter, that, as part of our wider discussions with stakeholders, the regulations will need to cover supervision and prompting in relation to daily activities as part of the eligibility criteria.
	Amendment 37 tabled by the noble Baroness, Lady Barker, would insert a requirement for local authorities to ensure that staff have an "understanding of dementia" when delivering personal care to those with a dementia diagnosis. The noble Baroness and the House will know that the Government have already taken major steps to transform the quality of care for those with dementia through our strategy and through the start we have made in building on that strategy.
	Section 15 of the Community Care (Delayed Discharges etc.) Act 2003, which the Bill amends, is about the free provision of services and not about particular types of service provision. The guidance accompanying the regulations enabled by the Bill will need to consider how local authorities may best ensure the delivery of free personal social care at home and ensure that it takes into account the Dementia Strategy. We think it is unsuitable to place this in the Bill, but we completely take on board the concern raised by the noble Baronesses, Lady Barker and Lady Greengross, on this issue. We are absolutely in sympathy with it.
	Amendment 42 by the noble Baroness, Lady Barker, inserts the definition of personal care into the Bill. As I have already said, the definition of personal care is included in the consultation document which is currently open for comment. We have been working with stakeholders to ensure that this definition is accurate and appropriate and meeting the Bill's aim of providing personal care to those with the highest needs. Following our analysis of that consultation we will look to amend the definition of personal care that we have set out in our working draft. However, we do not believe it is appropriate to put this in the Bill. We ask the noble Baroness to withdraw the amendment.

Baroness Masham of Ilton: My Lords, will the Minister confirm that the Bill covers Wales? I do not want it to feel left out, as she did not mention it.

Baroness Thornton: No, it does not cover Wales. I can write to the noble Baroness about what bits are covered where and what Wales is doing. It is not that Wales is not taking action in this regard. I do not have the brief in front of me but I know that it is and I am very happy to write to the noble Baroness and other Members of the Committee about what Wales is doing in this regard.

Earl Howe: My Lords, I would like to feel that those noble Lords who spoke so very ably to their individual amendments will be reassured by the noble Baroness's answer, which I appreciated. This debate has shown the difficulty of enshrining in the Bill, or in regulations or in guidance, exactly what you want people to do.
	I was particularly swayed by the speeches of the noble Baronesses, Lady Greengross and Lady Barker, in relation to dementia. They made points that I hope very much the Minister will continue to bear strongly in mind as the policy is developed in the department. I also thought that the noble Lord, Lord Best, spoke extremely cogently to his amendment on aids and adaptations, which I fully support. I did not say so earlier as he had not yet risen to his feet. I take the opportunity of doing so now. It may be that we shall come back to these matters at a later stage but I think for now it is appropriate for me to beg leave to withdraw my amendment.
	Amendment 19 withdrawn.
	Amendment 20 not moved.
	House resumed.

House adjourned at 10.19 pm.